IN THE SUPREME COURT, STATE OF WYOMING

2021 WY 54

 APRIL TERM, A.D. 2021

April 21, 2021

CALVIN LEE NEWNHAM,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-20-0264

Appeal from the District Court of Campbell County

The Honorable John R. Perry, Judge

Representing Appellant:

Calvin L. Newnham, pro se.

Representing Appellee:

Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; 

Joshua C. Eames, Senior Assistant Attorney General; Samuel L. Williams, 

Assistant Attorney General.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, 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.
1

FOX, Justice.

[¶1] Mr. Newnham failed to return to a Volunteers of America facility in Gillette, 

Wyoming, where he was serving a sentence for felony property destruction. Officers 

apprehended Mr. Newnham on a warrant in South Carolina seven months later and 

extradited him to Wyoming. Mr. Newnham pleaded guilty to escape and the district 

court imposed a 20 to 40-month sentence to run consecutive to his underlying sentence.

The district court ordered the time Mr. Newnham spent in custody prior to his sentence 

on the escape charge, 111 days, to be credited to his underlying sentence for property 

destruction.

[¶2] Mr. Newnham formed the belief that the Department of Corrections had not 

credited the 111 days to either sentence. He filed an inmate communication form asking 

the Department to credit him the time. The Department responded that it needed 

paperwork from the district court before it could do so. Mr. Newnham then filed, in his 

escape case, a motion to correct an illegal sentence pursuant to Wyoming Rule of 

Criminal Procedure 35. He argued his sentence was illegal because he had not received 

credit for the 111 days spent in jail after he was arrested for escape. The district court 

denied his motion and found that Mr. Newnham received all the credit for time served in

the property destruction case and, therefore, he was not entitled to any credit in the 

escape case. Mr. Newnham appealed, and we affirm. 

[¶3] Sentencing decisions are within the discretion of the trial court, except a court 

cannot impose an illegal sentence. Candelario v. State, 2016 WY 75, ¶ 5, 375 P.3d 1117, 

1118 (Wyo. 2016) (citing Endris v. State, 2010 WY 73, ¶ 13, 233 P.3d 578, 581 (Wyo. 

2010)). “A sentence is illegal if it violates the constitution or other law.” Candelario,

2016 WY 75, ¶ 5, 375 P.3d at 1118. “Whether a sentence is illegal is a question of law 

that we review de novo.” Palomo v. State, 2018 WY 42, ¶ 24, 415 P.3d 700, 705 (Wyo. 

2018). “A sentence that does not include proper credit constitutes an illegal sentence.” 

Candelario, 2016 WY 75, ¶ 6, 375 P.3d at 1118 (quoting Hagerman v. State, 2011 WY 

151, ¶ 12, 264 P.3d 18, 21 (Wyo. 2011)).

[¶4] Mr. Newnham’s appeal suffers from two fatal flaws. First, the record does not 

support his suggestion that his sentence does not include proper credit for his time served

awaiting his escape sentence. The district court properly ordered the 111 days to be 

credited to his underlying property destruction charge. This Court has previously held 

that “credit for presentence confinement does not include any credit for confinement that 

would persist without regard to the defendant’s ability to post bond in the court in which 

he is awaiting sentence.” Smith v. State, 932 P.2d 1281, 1282 (Wyo. 1997). In that case,

Mr. Smith requested credit for time served while awaiting sentencing on an escape 

charge. The district court instead applied the credit towards the underlying conviction.

Id. at 1281. Similarly, the district court appropriately credited Mr. Newnham’s time 

served to the underlying property destruction sentence.
2

[¶5] Second, if Mr. Newnham’s complaint is that the Department of Corrections did 

not apply the credit in accordance with the district court’s order, that is not an illegal 

sentence subject to a Rule 35 motion. “Rule 35 addresses only sentences which are

illegal in fact, not sentences which inmates claim are being executed illegally by the 

State.” Sides v. State, 2021 WY 42, ¶ 16, 483 P.3d 128, 133 (Wyo. 2021) (quoting Pfeil

v. State, 2014 WY 137, ¶ 24, 336 P.3d 1206, 1213 (Wyo. 2014)). “Rule 35 authorizes 

challenges to illegal sentences only. An illegal sentence is defined as one which exceeds 

statutory limits, imposes multiple terms of imprisonment for the same offense, or 

otherwise violates constitutions or the law.” Candelario, 2016 WY 75, ¶ 9, 375 P.3d at 

1119 (internal quotations omitted). The Department of Corrections’ administration of 

Mr. Newnham’s sentence does not “pertain to the validity of the underlying sentence.” 

Id. 

[¶6] The district court appropriately credited the time Mr. Newnham served after his 

arrest in the escape case to the underlying property destruction case. While 

Mr. Newnham is entitled to credit for that time, a motion to correct an illegal sentence is 

not the appropriate method to challenge the Department of Corrections’ administration of 

a sentence. Affirmed.