               IN THE SUPREME COURT, STATE OF WYOMING

                                         2013 WY 7

                                                          OCTOBER TERM, A.D. 2012

                                                                  January 17, 2013

TREVOR C. LAKE,

Appellant
(Defendant),

v.                                                   S-12-0055

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                     Appeal from the District Court of Crook County
                        The Honorable Dan R. Price II, Judge

Representing Appellant:
      Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel;
      Elisabeth M. W. Trefonas, Assistant Public Defender

Representing Appellee:
      Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Paul S.
      Rehurek, Senior Assistant Attorney General

Before KITE, C.J., and HILL, VOIGT, BURKE, JJ., and GOLDEN, J. (Retired)



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.
GOLDEN, Justice (Retired).

[¶1] Following a jury trial, Trevor C. Lake (Lake) was convicted of taking a controlled
substance into a jail. Lake appeals his conviction, claiming that the district court erred by
seating an unqualified juror. He also contends that the court erred in sentencing by not
giving him full credit for time spent in presentence incarceration. We affirm.

                                          ISSUES

[¶2]   Lake presents the following issues for our review:

              I.      Whether it is error to empanel a juror, who is not a
              resident of the County where the proceedings are held, when
              this renders the juror unqualified in violation of the Wyoming
              and United States Constitutions.

              II.     Whether an illegal Sentence must be corrected when
              credit for time served was improperly calculated and applied
              at Sentencing.

                                          FACTS

[¶3] On October 15, 2010, Lake was arrested on three counts of aggravated assault and
was jailed in the Crook County Detention Center. Before his October 2010 arrest, Lake
had undergone surgery for a work injury and, both before and after his arrest, he was
taking Percocet, a pain medication prescribed by his physician.

[¶4] On November 22, 2010, Lake was granted a furlough to travel to Casper for a
medical appointment and to obtain refill prescriptions for Percocet and another drug.
When Lake returned to the Crook County Detention Center later that day, he turned his
medications over to an officer who placed them in the facility’s “med room.” On
November 23, 2010, following a report from Lake’s cell mate, Lake’s cell was searched.
Officers discovered eleven Percocet pills in a deodorant container that belonged to Lake
and, on further investigation, they discovered that ten pills were missing from the bottle
of Percocet Lake had turned in when he returned from his furlough the evening before.

[¶5] On June 1, 2011, while Lake was still being held on the original assault charges,
the State filed an Information charging Lake with taking a controlled substance into the
Crook County Detention Center in violation of Wyo. Stat. Ann. § 6-5-208. The district
court issued an arrest warrant on June 1, 2011, and on that same date, the warrant was
served on Lake in jail.




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[¶6] On June 14, 2011, pursuant to a plea deal that reduced the original charges against
Lake from aggravated assault to misdemeanor reckless endangering, Lake entered a
guilty plea to reckless endangering. The district court sentenced him to serve a one-year
jail sentence, with credit for 242 days of presentence incarceration. The sentence for the
reckless endangering conviction thus expired on October 15, 2011.

[¶7] While Lake was serving his sentence on the reckless endangering conviction, the
felony charge against him for taking a controlled substance into a jail proceeded through
motions and to a jury trial, which began on October 3, 2011. At the commencement of
the jury trial, the district court addressed the entire jury panel and inquired into the jurors’
qualifications under Wyo. Stat. Ann. § 1-11-101(a), which included questions about
residency in the county. Neither party objected to the jurors’ general qualifications, and
the court made a finding that the panel members were qualified.

[¶8] The district court thereafter began empanelling a jury. After administering an oath
to the panel, the clerk drew the names of thirty-one panel members as candidates to fill
the jury. Following instructions from the court, each prospective juror stood and
provided certain personal information such as residence, occupation, and prior jury
experience. When Juror 21 stood up, she stated her name and said, “I’ve been a resident
of Crook County up until the last 30 days for 16 years. I am currently a resident in
Campbell County.”

[¶9] After the juror introductions, the attorneys conducted voir dire, and neither
attorney questioned Juror 21 about her residency status. After voir dire, counsel for the
State and for Lake passed the jury for cause. After the attorneys exercised their
peremptory challenges, and before the jury was brought back into the courtroom, the
following exchange occurred between the court and the attorneys:

              THE COURT: All right. Do we have anything further
              before we bring the jury in and seat them for purposes of the
              matter?

              [PROSECUTOR]: Your Honor, I guess I do have one. I
              don’t know if it’s a question or a concern, and that would be
              in regard to juror 21, . . . . I believe she stated that she had
              just recently moved to Campbell County within 30 days. I
              don’t know if that has any affect [sic].

              THE COURT: Well, now is not a time to raise it. You
              passed for qualifications. You didn’t have any questions.
              The statute says, citizen of the United States who has been a
              resident of the state and of the county 90 days before being
              selected and returned.


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                     I think she was. I think she just recently changed.
             She’s here and there were no questions or objections even
             after that information came up, so I think it’s all right. She’s
             here. We’re proceeding.

                    Anything else from the defense?

             [DEFENSE ATTORNEY]: Nothing, Your Honor, thank you.

[¶10] Following the presentation of evidence, the jury returned its guilty verdict on
October 4, 2011. A sentencing hearing was held on December 21, 2011, and the district
court imposed a sentence of twenty-four to thirty-six months, to be served consecutively
to the sentence Lake had served on the reckless endangering conviction, which expired
on October 15, 2011. The court granted a sentencing credit of sixty-nine days,
representing the time between expiration of Lake’s reckless endangering sentence and the
sentencing hearing on December 21, 2011.

[¶11] The district court entered its sentence on December 21, 2011, and Lake timely
filed his Notice of Appeal on January 6, 2012.


                              STANDARD OF REVIEW

[¶12] Lake’s challenge to juror qualifications presents issues of statutory interpretation
and waiver, both of which are questions of law this Court reviews de novo. Bloomer v.
State, 2009 WY 77, ¶ 8, 209 P.3d 574, 578 (Wyo. 2009) (statutory interpretation); In re
Wright, 983 P.2d 1227, 1231 (Wyo. 1999), overruled on other grounds by Torres v. State
ex rel. Wyo. Workers’ Safety & Comp. Div., 2004 WY 92, ¶ 7, 95 P.3d 794, 796 (Wyo.
2004) (waiver).

[¶13] Lake’s challenge to the legality of his sentence likewise presents a question of law
that we review de novo.

                    The question of whether a sentence is illegal because it
             does not include proper credit for time served is a question of
             law that we review de novo. Swain v. State, 2009 WY 142, ¶
             8, 220 P.3d 504, 506 (Wyo. 2009).

Hagerman v. State, 2011 WY 151, ¶ 3, 264 P.3d 18, 19 (Wyo. 2011).




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                                       DISCUSSION

A.     Juror Qualifications

[¶14] In Wyoming, a person is competent to act as a juror if that person meets the
requirements set forth in Wyo. Stat. Ann. § 1-11-101. The statutory requirement in
dispute in this appeal is the requirement that the juror be “a resident of the state and of the
county ninety (90) days before being selected and returned.” Wyo. Stat. Ann. § 1-11-
101(a)(i) (LexisNexis 2011). Lake contends that this language requires that a juror reside
in a county for the ninety-day period preceding any jury service in that county. The
State, on the other hand, contends that “selected and returned” refers to the preparation of
the base jury list, which is compiled and certified annually on April 1. Thus, the State
contends, the ninety-day residency requirement refers to the period preceding the April 1
certification of the base jury list.

[¶15] Determining the meaning of the language “selected and returned” is a question of
statutory interpretation, and we thus address the question using the following well-
established rules:

              In interpreting statutes, our primary consideration is to
              determine the legislature’s intent. All statutes must be
              construed in pari materia and, in ascertaining the meaning of
              a given law, all statutes relating to the same subject or having
              the same general purpose must be considered and construed
              in harmony. Statutory construction is a question of law, so
              our standard of review is de novo. We endeavor to interpret
              statutes in accordance with the legislature’s intent. We begin
              by making an inquiry respecting the ordinary and obvious
              meaning of the words employed according to their
              arrangement and connection. We construe the statute as a
              whole, giving effect to every word, clause, and sentence, and
              we construe all parts of the statute in pari materia. When a
              statute is sufficiently clear and unambiguous, we give effect
              to the plain and ordinary meaning of the words and do not
              resort to the rules of statutory construction. Moreover, we
              must not give a statute a meaning that will nullify its
              operation if it is susceptible of another interpretation.

                     Moreover, we will not enlarge, stretch, expand, or
              extend a statute to matters that do not fall within its express
              provisions.




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                     Only if we determine the language of a statute is
              ambiguous will we proceed to the next step, which involves
              applying general principles of statutory construction to the
              language of the statute in order to construe any ambiguous
              language to accurately reflect the intent of the legislature. If
              this Court determines that the language of the statute is not
              ambiguous, there is no room for further construction. We will
              apply the language of the statute using its ordinary and
              obvious meaning.

Redco Constr. v. Profile Prop., LLC, 2012 WY 24, ¶ 26, 271 P.3d 408, 415-16 (Wyo.
2012) (quoting Cheyenne Newspapers, Inc. v. Building Code Bd. of Appeals of City of
Cheyenne, 2010 WY 2, ¶ 9, 222 P.3d 158, 162 (Wyo. 2010)).

[¶16] The Wyoming statutes governing jury qualification, selection, and empaneling do
not define the term “selected and returned.” The term’s ordinary meaning is, however,
informed by other sources. As a starting point, a “jury list” is generally defined as a “list
of persons who may be summoned to serve as jurors.” Black’s Law Dictionary 936 (9th
ed. 2009). The common process for compiling and returning a jury list is described in the
following authority:

                      While the statutes vary as to certain details, the
              essential steps in making up the jury list consist in: (1) A
              selection by the proper officers of a list of names of those
              persons qualified to serve as jurors. (2) The signing,
              certification and return of this list to the clerk of the court, to
              be filed or recorded by him. (3) The copying of the names
              contained on the list upon separate slips or ballots which are
              deposited in the jury box or wheel from which the panel is
              subsequently drawn.

35 C.J. Juries § 213 (1924) (emphasis added and footnotes omitted).

[¶17] As indicated by the above-quoted overview, the use of the terms “selected” and
“returned,” or variations on those terms, is a reference to that point in the process when a
jury list is being prepared. In that context, the terms refer, not to those jurors called to
serve on a particular case, but rather to those selected to be included in the broader jury
list, and the return of that list to the court.

[¶18] This is an interpretation that is consistent with Wyoming’s statutorily-prescribed
process of preparing a jury list and then subsequently summoning prospective jurors from
that list. Wyoming’s governing statutes define the qualifications for service as a juror.
See Wyo. Stat. Ann. § 1-11-101. The statutes then provide for the preparation of a “list


                                               5
of persons qualified to serve as trial jurors,” which list serves as the “base jury list” from
April 1 of the year in which the list is certified through March 31 of the following year.
Wyo. Stat. Ann. § 1-11-106(a) (LexisNexis 2011) (emphasis added). After the base jury
list is prepared, a clerk may summon jurors from that list to appear for trial as so ordered
by a court. Wyo. Stat. Ann. § 1-11-106(b); Wyo. Stat. Ann. § 1-11-109 (LexisNexis
2011).

[¶19] By statute, the process for preparing the list of “qualified” jurors predates and is
separate from the process for summoning jurors to service. It likewise predates and is
separate from the process for seating a jury. We thus agree with the State that “selected
and returned,” as used in Wyo. Stat. Ann. § 1-11-101(a)(i), relates to the preparation of
the base jury list – the list of qualified jurors. See also Smith v. State, 364 So.2d 1, 5
(Ala. Crim. App. 1978) (“selected and returned” relates to the jury list); State v. Danner,
226 P. 475, 476 (Mont. 1924) (requirement of being a county resident ninety days before
being “selected and returned” relates to the time at which the jury list was compiled).

[¶20] Because “selected and returned” is a reference to preparation of the base jury list,
the critical date for measuring the duration of a prospective juror’s residence in a county
is April 1, the date on which the base jury list is certified. In other words, any juror who
is a resident of a county for the ninety-day period preceding April 1 meets the residence
qualification for service in that county.

[¶21] It is undisputed that Juror 21 was a resident of Crook County for the ninety-day
period preceding the April 1 selection and return, and she was therefore a qualified juror.
We thus find no error in the district court’s seating of the jury. Having found no error,
we need not address the State’s argument that Lake waived any objection to the
qualifications of the jury.

B.     Sentencing Credit for Presentence Incarceration

[¶22] During the sentencing proceeding before the district court, Lake requested that he
be credited 219 days against the sentence on his conviction for taking a controlled
substance into a jail. This figure represents 152 days of custody from January 13, 2011,
the date the Affidavit of Probable Cause in Support of Information was purportedly filed,
to June 14, 2011, the date on which Lake was sentenced on his reckless endangering
conviction. Lake then adds the 67-day period of presentence incarceration in this case,
from October 15, 2011, the date that his reckless endangering sentence expired, to
December 21, 2011, when he was sentenced on the drug-related conviction. These two
figures total 219 days.

[¶23] The district court denied Lake’s request and instead credited his sentence for sixty-
nine days of presentence incarceration, representing the period between the expiration of



                                               6
his reckless endangering sentence and sentencing in the present case.1 We agree with the
district court and reject Lake’s request for an additional credit.

[¶24] This Court has announced the following rule governing awards of credit for
presentence confinement:

               A criminal defendant is entitled to credit against his sentence
               for the time he was incarcerated prior to sentencing, provided
               that the confinement was due to his inability and failure to
               post bond on the offense for which he was awaiting
               disposition. The purpose of this rule is to provide equal
               protection to defendants who are unable to post bond because
               of their indigence. A defendant is not, however, entitled to
               credit for the time he spent in custody when his confinement
               would have continued despite his ability to post bond.

Hernandez v. State, 2009 WY 49, ¶ 7, 205 P.3d 183, 184 (Wyo. 2009) (quoting Gomez v.
State, 2004 WY 15, ¶ 18, 85 P.3d 417, 421 (Wyo. 2004)).

[¶25] We reject Lake’s request for additional presentence confinement credit for two
reasons. First, Lake was not in custody in the present case until June 1, 2011, the date on
which the Information was filed and the arrest warrant executed. The probable cause
affidavit that supported the Information may have been signed on January 13, 2011, but it
was not filed in January. The record is clear that the probable cause affidavit was not
filed as a separate document and was instead filed only as an attachment in support of the
Information, on the date that the Information was filed, June 1, 2011. Lake plainly was
not in custody on the drug-related charge until June 1, 2011, and he is thus not entitled to
credit for any period of incarceration before that date.

[¶26] Second, our precedent is clear that a defendant is not entitled to credit for time
spent serving a sentence on another charge. See Hernandez, ¶¶ 4-7, 205 P.3d at 183-84
(upholding district court’s denial of credit for presentence confinement where credit for
that confinement had already been given against a sentence on a separate offense); Sweets
v. State, 2001 WY 126, ¶ 6, 36 P.3d 1130, 1131 (Wyo. 2001) (defendant not entitled to
credit for presentence confinement against second sentence when he was serving a
sentence from an unrelated crime). On June 14, 2011, Lake was sentenced to one-year of
incarceration on his reckless endangering conviction, and was given credit for his entire
242-day period of presentence confinement. This effectively made his one-year sentence
run from October 15, 2010, through October 15, 2011. The district court ordered Lake’s
sentences for his drug-related and reckless endangering convictions to run consecutively,

1
  The parties agree that this figure should have been sixty-seven days, rather than the sixty-nine days
awarded by the district court, but that miscalculation is not an issue in this appeal.


                                                   7
and Lake is thus not entitled to credit for the time spent serving his separate sentence for
the reckless endangering conviction.

[¶27] The district court properly credited Lake for presentence confinement from
October 15, 2011, when Lake’s first sentence expired, to December 21, 2011, when the
court entered sentence on Lake’s drug-related conviction.


                                     CONCLUSION

[¶28] We find no error in the district court’s seating of the jury, and we find no error in
the court’s award of credit for presentence confinement. Affirmed.




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