                IN THE SUPREME COURT, STATE OF WYOMING

                                             2015 WY 39

                                                                 OCTOBER TERM, A.D. 2014

                                                                             March 9, 2015


CURTIS J. HAMILTON,

Appellant
(Defendant),

v.                                                                             S-14-0146

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                       Appeal from the District Court of Sublette County
                           The Honorable Marvin L. Tyler, Judge


Representing Appellant:

        Robert W. Horn, Robert W. Horn, P.C., Jackson, Wyoming.

Representing Appellee:

        Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Jenny
        L. Craig, Senior Assistant Attorney General; Jill E. Kucera, Senior Assistant Attorney
        General; Courtney A. Amerine, Student Intern. Argument by Ms. Amerine.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, 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.
BURKE, Chief Justice.

[¶1] This appeal presents a question of first impression as to whether a court, under
Wyoming Rule of Criminal Procedure 35(a), may increase a previously-imposed, legal
sentence. Pursuant to a plea agreement, Curtis Hamilton pled guilty to charges of
conspiracy to deliver methamphetamine and child endangerment. He agreed to cooperate
with the State and provide information about his criminal conduct, and he agreed that the
State could move under W.R.Cr.P. 35(a) for an increase in his sentence if he did not meet
this obligation. Several months after he was sentenced, the State asserted that he had
failed to cooperate, and moved to modify his sentence. The district court granted the
motion and imposed a new, more severe sentence. We conclude that, despite the parties’
plea agreement, the district court lacked jurisdiction to increase the sentence.
Accordingly, we vacate the new sentence and remand for further proceedings consistent
with this opinion.

                                               ISSUE

[¶2] Did the district court have jurisdiction pursuant to W.R.Cr.P. 35(a) to increase a
defendant’s sentence of incarceration when the original sentence was a legal sentence?

                                               FACTS

[¶3] Mr. Hamilton was charged with one misdemeanor and eight felony counts
involving possession and delivery of methamphetamine, possession of marijuana,
conspiracy to deliver methamphetamine, and endangering a child. He negotiated a plea
agreement with the State. Mr. Hamilton agreed to plead guilty to conspiracy to deliver
methamphetamine in violation of Wyo. Stat. Ann. § 35-7-1042 and § 35-7-1031(a)(i)
(LexisNexis 2011), and endangering a child in violation of Wyo. Stat. Ann. § 6-4-
405(a)(ii) and (c). The State agreed to dismiss the remaining charges and to recommend
a five- to eight-year sentence on the conspiracy charge. 1

[¶4] As part of the plea agreement, Mr. Hamilton promised to cooperate with the State
in providing information and testimony to assist the State in its investigation of other
criminal activity. He agreed that, if he failed to cooperate, he would not object to the


1
  The parties did not agree on the sentence for the child endangerment charge. However, as the agreement
recited, the statutory maximum prison term for child endangerment was less than the agreed-upon
sentence for the conspiracy charge, and the State agreed that the sentences for the two crimes would be
served concurrently. Accordingly, the length of the sentence on the child endangerment charge would
have little or no practical effect on the amount of time Mr. Hamilton would spend in prison.




                                                   1
State’s motion to modify his sentence pursuant to W.R.Cr.P. 35(a). This provision of the
plea agreement read as follows:

             I will cooperate with the government and provide accurate
             and truthful information about my involvement in criminal
             conduct, specifically the offenses charged in the Amended
             Information. I will also provide accurate and truthful
             information about criminal conduct pertaining to the illegal
             distribution of controlled substances by myself or
             acquaintances including but not limited to: [four identified
             individuals]. If, after the Court has accepted my plea
             pursuant to the terms and conditions of this Plea Agreement, I
             do not voluntarily cooperate and truthfully testify if called
             upon to do so in the criminal trials of [the same four
             individuals], or any other citizen about whom I have provided
             information pertaining to the illegal distribution of controlled
             substances, I acknowledge and agree that I will have breached
             the terms of this Plea Agreement. In the event of such a
             breach I will not be able to withdraw my plea to the offenses
             stated. In the event of such a breach, Defendant agrees not to
             contest or object to the State’s filing of a motion pursuant to
             Rule 35(a) of the Wyoming Rules of Criminal Procedure in
             order to correct the Defendant’s sentence to reflect his lack of
             fulfillment of this Plea Agreement. I understand that I will be
             re-sentenced on Count IX to a term of not more than twenty
             years, a fine of not more than $25,000.00, or both. I will be
             sentenced consecutively on Count II to a term of
             imprisonment of not more than five years, a fine of not more
             than $5,000.00, or both.

The district court accepted the plea, and imposed the agreed-upon sentence of five to
eight years on the conspiracy charge. It also imposed a sentence of three to five years on
the child endangerment charge, with the two sentences to be served concurrently. The
remaining charges were dismissed.

[¶5] Several months after Mr. Hamilton was sentenced, the State filed a “Motion for
Sentence Modification Pursuant to W.R.Cr.P. Rule 35(a).” The State alleged that Mr.
Hamilton had breached the plea agreement by failing to cooperate and failing to provide
complete, truthful, and forthright information as required. Despite his agreement not to
object, Mr. Hamilton opposed the State’s motion, claiming that he had not breached the
agreement and that Rule 35(a) did not allow the State to seek an increase in a previously-
imposed sentence.



                                            2
[¶6] After an evidentiary hearing, the district court granted the State’s motion. In its
decision letter, the district court detailed its findings that Mr. Hamilton had breached the
plea agreement. It stated that the information Mr. Hamilton had provided at different
times had “varied significantly as to amounts of the controlled substances involved and as
to the source of the methamphetamine.” The court found that Mr. Hamilton’s
“vacillations” had an immediate, irreversible impact on the State’s ability to properly
charge and prosecute the individuals referred to in the plea agreement, and that
Mr. Hamilton’s “intentional and affirmative efforts to destroy the value of his anticipated
testimony, coupled with his recalcitrance to cooperate and truthfully testify, if necessary,
stripped the State of any benefit of the ‘Plea Agreement.’”2

[¶7] The district court noted that, “[g]enerally, [it] has discretion to modify a sentence
under W.R.Cr.P. 35.” The court also cited authority for the proposition that the general
principles of contract law apply to a plea agreement. The court also found that the plea
agreement was clear and unambiguous, and clearly reflected the parties’ intent that if
Mr. Hamilton did not cooperate with the State, he would not object to the State’s filing of
a motion to modify his sentence pursuant to Rule 35(a). It determined that the “intent of
the parties, as stated in the ‘Plea Agreement,’ must be given effect.” The agreed-upon
remedy for Mr. Hamilton’s breach was resentencing pursuant to Rule 35(a). Having
determined that Mr. Hamilton had materially and substantially breached the agreement,
the district court granted the State’s motion pursuant to Rule 35(a).

[¶8] At Mr. Hamilton’s resentencing, the district court increased the previous five- to
eight-year sentence on the conspiracy charge to eight to twelve years. It also ordered the
formerly concurrent sentences to be served consecutively, resulting in a substantial
increase in the time Mr. Hamilton would be imprisoned. He subsequently filed this
timely appeal.

                                  STANDARD OF REVIEW

[¶9] The determination of whether a district court has jurisdiction pursuant to
W.R.Cr.P. 35(a) to increase a previously-imposed, legal sentence presents a question of
law reviewed de novo. W.R.A.P. 1.03; Pfeil v. State, 2014 WY 137, ¶ 7, 336 P.3d 1206,
1209 (Wyo. 2014). In order to resolve that question, we must interpret W.R.Cr.P. 35(a).
Interpretation of rules of procedure also presents a question of law which we review de
novo. Busch v. Horton Automatics, Inc., 2008 WY 140, ¶ 13, 196 P.3d 787, 790 (Wyo.
2008).


2
 On appeal, Mr. Hamilton does not challenge the district court’s conclusion that he breached the plea
agreement.




                                                 3
                                      DISCUSSION

[¶10] We must determine whether W.R.Cr.P. 35 gives the district court authority to
increase a previously-imposed, legal sentence. As noted above, this issue presents a
question of first impression. The district court remarked on the novelty of the State’s
motion to modify Mr. Hamilton’s sentence at the hearing on the motion:

             I’ve frankly never seen it before, I’ve never seen a Rule 35(a)
             motion to modify sentence that would contemplate enforcing
             a plea agreement that would increase, if you will, the sentence
             that has already been handed down by the Court in this case.
             . . . I’ve never seen a request of this nature before in my
             experience as a judge nor in my experience as a lawyer before
             being appointed. I was pretty much at sea as to standards and
             what considerations I should make so yesterday I did a little
             bit of researching, there is not anything directly on point that I
             could find.

The prosecutor agreed with the court’s assessment, stating as follows:

             As the Court has indicated, there is not a lot of guidance. . . .
             If this is appealed it would be an issue of, I think, first
             impression as to whether or not Rule 35 was the proper
             vehicle to essentially enlarge a sentence if there has been a
             violation of a plea agreement and so the State has been very
             concerned with making a good record in this instance in case
             the matter is appealed and so that there could be some further
             guidance to prosecutors who are contemplating using this rule
             for this purpose.

As in the proceedings below, the State has not cited any precedent, from Wyoming or any
other jurisdiction, for granting a Rule 35 motion to increase a legal sentence. We have
found none.

[¶11] This lack of precedent is remarkable considering the number of jurisdictions that
have provisions comparable to W.R.Cr.P. 35. Our rule is similar to the corresponding
federal rule, F.R.Cr.P. 35, before that rule was amended in 1987. See 3 Charles A.
Wright and Sarah N. Welling, Federal Practice and Procedure at 587 n.4 (4th ed. 2011).
In addition, 35 states and the District of Columbia recognize motions to correct illegal
sentences, and 29 states and the District of Columbia allow motions to reduce sentences.
Donald E. Wilkes, Jr., State Postconviction Remedies and Relief Handbook § 1:7, at 14-



                                             4
15 (2013-2014). We recognize that the various state provisions may be worded
differently than our Rule 35. Still, with so many jurisdictions permitting motions to
revise previously-imposed sentences, we cannot ignore the complete lack of precedent for
granting a motion to increase a legal sentence.

[¶12] In addition, we have consulted a number of treatises and other secondary
authorities on post-sentencing relief. All of them contain discussions about correcting or
reducing sentences, but none of them include any mention of increasing sentences under
circumstances similar to those in Mr. Hamilton’s case. For example, it is explained in
Arthur W. Campbell, Law of Sentencing § 14:1 (2014), that “current practice throughout
the country permits sentencing judges to reduce valid sentences in accordance with the
jurisdiction’s court rules or legislation.” To explain the policy underlying this practice,
he quoted from District Attorney for Northern Dist. v. Superior Court, 172 N.E.2d 245,
250-51 (Mass. 1961):

             Occasions inevitably will occur where a conscientious judge,
             after reflection or upon receipt of new probation reports or
             other information, will feel that he has been too harsh or has
             failed to give due weight to mitigating factors which properly
             he should have taken into account. In such cases the interests
             of justice and sound judicial administration will be served by
             permitting the trial judge to reduce the sentence within a
             reasonable time.

Notably, consistent with these authorities, we have previously indicated that Rule 35 is
intended to benefit a convicted defendant in the appropriate case:

                    The purpose of Rule 35 “is to give a convicted
             defendant a second round before the sentencing judge (a
             second bite at the apple as it were) and to give the judge the
             opportunity to reconsider the original sentence in light of any
             further information about the defendant.” Patrick v. State,
             2005 WY 32, ¶ 9, 108 P.3d 838, 841 (Wyo. 2005), quoting
             Nelson v. State, 733 P.2d 1034, 1035 (Wyo. 1987). The
             sentencing judge is in the best position to decide if a sentence
             modification is appropriate, Capellen v. State, 2007 WY 107,
             ¶ 29, 161 P.3d 1076, 1084 (Wyo. 2007), and is free to accept
             or reject information submitted in support of a sentence
             reduction at its discretion. Hodgins v. State, 1 P.3d 1259,
             1262 (Wyo. 2000).

Boucher v. State, 2012 WY 145, ¶ 10, 288 P.3d 427, 430 (Wyo. 2012).



                                            5
[¶13] In order to place our discussion in proper context it is important to emphasize that,
in this case, Mr. Hamilton’s conviction and original sentence were final. He did not
appeal the original judgment and sentence, and the time for appeal had expired when the
State filed its motion to increase the sentence. In such circumstances, a trial court can
only exercise jurisdiction “if a specific, express exception conferring jurisdiction is
created by a rule or statute.” Neidlinger v. State, 2010 WY 54, ¶ 9, 230 P.3d 306, 308
(Wyo. 2010). Stated a different way:

              In short, except where there has been a remand following an
              appeal in a criminal case, or where one of the statutes or rules
              mentioned above otherwise expressly permits a district court
              to continue to assert jurisdiction over that criminal case, no
              authority exists for the court to act in the case – and its
              jurisdiction over the case should end – once the defendant’s
              conviction has become final because of his exercise or
              forfeiture of his right to appeal from that conviction.

Nixon v. State, 2002 WY 118, ¶ 13, 51 P.3d 851, 854 (Wyo. 2002).

[¶14] One of the express exceptions authorizing a trial court to exercise jurisdiction over
a case after the conviction has become final is set forth in W.R.Cr.P. 35. In this case, we
are called upon to interpret Rule 35 to determine whether it confers jurisdiction on a trial
court to increase a previously-imposed, legal sentence of incarceration. In conducting
our analysis, we consider the language of the Rule “as a whole, giving effect to every
word, clause, and sentence.” Jones v. State, 2011 WY 115, ¶ 11, 256 P.3d 536, 541
(Wyo. 2011). The Rule reads as follows:

              Rule 35. Correction or reduction of sentence.

              (a) Correction. — The court may correct an illegal sentence
              at any time. Additionally the court may correct, reduce, or
              modify a sentence within the time and in the manner provided
              herein for the reduction of sentence.

              (b) Reduction. — A motion to reduce a sentence may be
              made, or the court may reduce a sentence without
              motion, within one year after the sentence is imposed or
              probation is revoked, or within one year after receipt by the
              court of a mandate issued upon affirmance of the judgment or
              dismissal of the appeal, or within one year after entry of any
              order or judgment of the Wyoming Supreme Court denying



                                             6
                review of, or having the effect of upholding, a judgment of
                conviction or probation revocation. The court shall determine
                the motion within a reasonable time. Changing a sentence
                from a sentence of incarceration to a grant of probation shall
                constitute a permissible reduction of sentence under this
                subdivision. The court may determine the motion with or
                without a hearing.

According to this Rule, the court may “correct, reduce, or modify a sentence.”
Mr. Hamilton accurately points out that his case does not involve correction or reduction
of his sentence, only modification. We must determine what the word “modify” is
intended to mean as it is used in Rule 35.

[¶15] Without offering a definition of the term “modify,” Mr. Hamilton asserts that it
cannot be read to mean “increase” because that would be contrary to the purpose of Rule
35, which, as noted in Boucher v. State, is to give the defendant a “second bite at the
apple.”3 The State also fails to suggest a definition for the term “modify.” The State,
however, would apparently interpret modify in the broadest sense possible, permitting a
sentencing court to modify every aspect of a sentence up or down within one year
pursuant to Rule 35.

[¶16] As in every case involving interpretation of a statute or rule, we first consider the
plain and ordinary meaning of the words employed. Busch, ¶ 13, 196 P.3d at 790.
“Modify” can be defined as “To alter; to change in incidental or subordinate features;
enlarge, extend; amend; limit, reduce. Such alteration or change may be characterized, in
quantitative sense, as either an increase or decrease.” Black’s Law Dictionary 1004 (6th
ed. 1990). Under this definition, a modification could be either an increase or a


3
  Mr. Hamilton also contends that the State may not file a Rule 35 motion because Rule 35 is restricted to
use by defendants only. We find no support for that position. We have stated that, “When the legislature
specifically uses a word in one place, we will not interpret that word into other places where it was not
used.” Qwest Corp. v. Public Service Comm’n, 2007 WY 97, ¶ 25, 161 P.3d 495, 501 (Wyo. 2007)
(citing In re Adoption of Voss, 550 P.2d 481, 485 (Wyo. 1976)). The same applies when we interpret
rules of procedure. Busch, ¶ 13, 196 P.3d at 790. Rule 34, which governs arrest of judgment against a
defendant, specifically states that the court acts “on motion of a defendant.” That language was not put
into Rule 35, and nothing in the language of Rule 35 suggests such a restriction. We therefore conclude
that the use of Rule 35 is not limited to defendants. The State may file a motion under Rule 35. Indeed,
we have encountered other instances in which the State has filed a motion under Rule 35. See, e.g.,
Patterson v. State, 2012 WY 90, ¶ 4, 279 P.3d 535, 536-37 (Wyo. 2012) (“Less than a month later, the
State filed a ‘Motion for Correction of Sentence’ in Mr. Patterson’s case.”). Furthermore, Rule 35(b)
expressly provides that the “court may reduce a sentence without motion.” Rule 35(a) provides that the
court may correct, reduce, or modify a sentence within the time and in the manner provided in Rule 35(b).
Thus, the court may also take action under Rule 35(a) without either party making a motion.




                                                    7
reduction. However, we are unable to conclude that the term “modify” in Rule 35 is used
in a quantitative sense. First, we note that use of “modify” in a quantitative sense would
render the term “reduce” in Rule 35 redundant and unnecessary, contrary to our rule of
statutory interpretation holding that each word of a statute is to be afforded meaning, with
none rendered superfluous or meaningless. Starrett v. State, 2012 WY 133, ¶ 9, 286 P.3d
1033, 1037 (Wyo. 2012). Second, as we have repeatedly stated, “we will not enlarge,
stretch, expand, or extend a statute to matters that do not fall within its express
provisions.” Ball v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2010 WY 128, ¶
29, 239 P.3d 621, 629-30 (Wyo. 2010); see also Stutzman v. Office of the State Eng’r,
2006 WY 30, ¶ 16, 130 P.3d 470, 475 (Wyo. 2006) (“omission of words from a statute is
considered to be an intentional act by the legislature, and this court will not read words
into a statute when the legislature has chosen not to include them”). If the drafters of
Rule 35 had intended for the Rule to allow a court to impose an increased sentence, they
could have done so simply, and more directly, by using the term “increase” in Rule 35.
The fact that the drafters did not use the term “increase” strongly indicates that the Rule
was not intended to allow a court to increase a previously-imposed, legal sentence. We
find it more likely that the drafters intended for the term “modify” to refer to sanctions
that do not increase the severity of the defendant’s sentence. For example, the court
could modify the terms of payment of restitution ordered pursuant to Wyo. Stat. Ann. §
7-9-101 et seq.

[¶17] Even if we found that the term “modify” was intended in a quantitative sense, we
would be compelled to conclude that allowing a court to increase a previously-imposed,
legal sentence is generally contrary to the established principles of double jeopardy.4 It is
well-established that a legal sentence cannot be increased after the defendant has begun
to serve it. Turner v. State, 624 P.2d 774, 775-76 (Wyo. 1981).5 Indeed, it has long been
recognized that double jeopardy protections are intended to guard against increased
punishment for the same crime, regardless of whether the punishment is imposed after a
second trial:




4
  Article 1, Section 11 of the Wyoming Constitution provides: “nor shall any person be twice put in
jeopardy for the same offense.” Similarly, as provided in the Fifth Amendment to the United States
Constitution: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or
limb.”
5
  We have recognized that where an original sentence is void due to illegality, a court may impose a
greater sentence than the one determined to be illegal. See, e.g., Moronese v. State, 2012 WY 34, ¶¶ 10-
13, 271 P.3d 1011, 1014-15 (Wyo. 2012). The parties do not contend that Mr. Hamilton’s initial sentence
was illegal, and it is clear that the State’s motion in this case was not one to correct an illegal sentence.




                                                     8
             If there is anything settled in the jurisprudence of England
             and America, it is that no man can be twice lawfully punished
             for the same [offense]. And though there have been nice
             questions in the application of this rule to cases in which the
             act charged was such as to come within the definition of more
             than one statutory [offense], or to bring the party within the
             jurisdiction of more than one court, there has never been any
             doubt of its entire and complete protection of the party when
             a second punishment is proposed in the same court, on the
             same facts, for the same statutory [offense].

             ***

             For of what avail is the constitutional protection against more
             than one trial if there can be any number of sentences
             pronounced on the same verdict? Why is it that, having once
             been tried and found guilty, he can never be tried again for
             that [offense]? Manifestly it is not the danger or jeopardy of
             being a second time found guilty. It is the punishment that
             would legally follow the second conviction which is the real
             danger guarded against by the Constitution. But if, after
             judgment has been rendered on the conviction, and the
             sentence of that judgment executed on the criminal, he can be
             again sentenced on that conviction to another and different
             punishment, or to endure the same punishment a second time,
             is the constitutional restriction of any value? Is not its intent
             and its spirit in such a case as much violated as if a new trial
             had been had, and on a second conviction a second
             punishment inflicted?

             The argument seems to us irresistible, and we do not doubt
             that the Constitution was designed as much to prevent the
             criminal from being twice punished for the same [offense] as
             from being twice tried for it.

Ex parte Lange, 85 U.S. 163, 168, 173, 21 L.Ed. 872, 875, 878 (1874).

[¶18] In sum, the plain language of Rule 35 does not specifically provide a district court
with authority to increase a previously-imposed, legal sentence. Interpreting the word
“modify” to permit such an increase is generally contrary to a defendant’s right to be
protected from double jeopardy. We conclude that the Rule cannot be interpreted to
allow a court to increase a previously-imposed, legal sentence.



                                            9
[¶19] The State notes that the plea agreement Mr. Hamilton made expressly provided
that the State could move under Rule 35(a) to modify his sentence if he did not comply
with its terms. Mr. Hamilton understood, and agreed, that this modification would result
in an increased sentence. The State maintains that an increased sentence “presents a
double jeopardy concern only when a defendant has a reasonable expectation of finality
in his original sentence.” Ferguson v. State, 2013 WY 117, ¶ 16, 309 P.3d 831, 836
(Wyo. 2013). The plea agreement demonstrates that Mr. Hamilton did not have any
expectation that his initial sentence was final and, accordingly, the State asserts that the
increased sentence did not infringe upon his constitutional rights against double jeopardy.

[¶20] Whether Mr. Hamilton’s double jeopardy rights were preserved by the plea
agreement in this case, however, is an issue that we must address only if we first
determine that the district court had jurisdiction, pursuant to W.R.Cr.P. 35, to increase the
original sentence.6 We have concluded that it did not. Furthermore, the parties could not
confer jurisdiction on the district court by their agreement:

                We have long held that parties may not waive jurisdictional
                defects or consent to subject matter jurisdiction where it
                otherwise does not exist. . . . See Weller v. Weller, 960 P.2d
                493, 496 (Wyo. 1998) (“A lack of subject matter jurisdiction
                constitutes a fundamental defect in a proceeding which
                cannot be cured by waiver or consent by the parties.”); White
                v. Bd. of Land Comm’rs, 595 P.2d 76, 79 (Wyo. 1979)
                (“Parties cannot confer jurisdiction by consent.”).

Hanson v. Belveal, 2012 WY 98, ¶ 27, 280 P.3d 1186, 1196 (Wyo. 2012).

[¶21] There are other ways for the parties to fashion a plea agreement that would allow
the State and a defendant to benefit from a defendant’s cooperation. Under
W.R.Cr.P. 32(c)(1), sentences must be imposed without unnecessary delay, “but the court


6
 Ultimately, the plea agreement is irrelevant to our interpretation of the Rule. It does, however, illustrate
problems with the approach urged by the State. In Yates v. State, 792 P.2d 187, 192 (Wyo. 1990), we
held that a delay in sentencing in excess of one year, from the date of the defendant’s guilt, is
presumptively unreasonable. In doing so, we recognized “the possibility that a greater punishment than is
deserved” could be imposed because of conduct subsequent to suspension of the imposition of the
defendant’s sentence. Additionally, we noted the potential for “any vagaries of memory” to “interfere
with the imposition of a sentence appropriate to the individual and the crime.” Id. Similar dangers are
presented when a plea agreement attempts to permit the increase of a legal sentence under W.R.Cr.P. 35.
This is especially true in cases like the present one, where the plea agreement does not specify the
sentence that will be imposed in the event the defendant does not comply with the terms of the agreement.




                                                    10
may, when there is a factor important to the sentencing determination that is not then
capable of being resolved, postpone the imposition of sentence for a reasonable time until
the factor is capable of being resolved.” If the length of a defendant’s sentence is
dependent on his cooperation with the prosecution in other cases, the district court could
accept a plea agreement, but delay the imposition of sentence until the defendant has
proven cooperative or uncooperative. Another alternative is suggested by the current
version of Rule 35 of the Federal Rules of Criminal Procedure, by which the defendant is
initially sentenced to the higher sentence, and the government may move to reduce the
sentence if the defendant, after sentencing, provided substantial assistance in
investigating or prosecuting another person.

[¶22] To summarize, we have concluded that motions under W.R.Cr.P. 35 may seek to
correct an illegal sentence or one imposed in an illegal manner, reduce a sentence, or
modify any sanction of a sentence other than total confinement so long as the
modification does not increase the overall severity of a sentence. W.R.Cr.P. 35 does not
give the trial court jurisdiction to increase a previously-imposed, legal sentence.
Accordingly, we must vacate Mr. Hamilton’s sentence.

[¶23] Having determined that Mr. Hamilton’s sentence must be vacated, we must now
determine an appropriate remedy. Mr. Hamilton has not challenged the district court’s
finding that he failed to cooperate with the State as contemplated in the original plea
agreement. Our determination that the district court lacked jurisdiction to increase the
sentence deprives the State of the agreed upon remedy for Mr. Hamilton’s failure to
cooperate. As a result, the State has not received the benefit of its bargain under the plea
agreement. Under the agreement, all other counts against Mr. Hamilton were dismissed,
and he apparently received a shorter sentence in anticipation of his cooperation with the
State. As we have previously recognized, “A plea agreement is a contract between the
State and a defendant. As such, both parties must adhere to the terms of the contract, and
each party is entitled to the benefit of the bargain entered.” Bowlsby v. State, 2013 WY
72, ¶ 27, 302 P.3d 913, 926 (Wyo. 2013) (quoting Ford v. State, 2003 WY 65, ¶ 10, 69
P.3d 407, 410 (Wyo. 2003)). Indeed, we have specifically recognized that “It is
axiomatic that, if a defendant fails to comply with a plea agreement, the state is not bound
by that agreement.” Schade v. State, 2002 WY 133, ¶ 8, 53 P.3d 551, 555 (Wyo. 2002).
The vacation of Mr. Hamilton’s sentence necessarily restores his initial sentence of three
to five years for child endangerment and five to eight years on the conspiracy charge,
with the terms to be served concurrently. On remand, the State may decide not to disturb
that sentence. However, because Mr. Hamilton breached the plea agreement, the State
may also choose to void the agreement and reinstate the previously-dismissed charges.
The State shall advise the district court and Mr. Hamilton of its decision within thirty
days of the issuance of the mandate from this Court.

[¶24] We vacate Mr. Hamilton’s sentence and remand for further proceedings consistent



                                            11
with this opinion.




                     12
