### IN THE SUPREME COURT, STATE OF WYOMING

20 2 1 WY 54

APRIL TERM , A.D. 202 1

April 21, 2021

CALVIN LEE NEWNHAM,

Appellant (Defendant),

v.

THE STATE OF WYOMING,

Appellee (Plaintiff). S

- 20

- 0264

A

ppeal from the D istrict Court of Camp bell Cou n t y Th e Ho nora ble John R. Perry , Judge

Representing Appellan t :

Calvin L. Newnham, pro se

.

R epre senting App elle e :

Bridget L. H ill , Attorney General; Jenny L

. Craig , Dep uty Attorney General;

J

oshua C . Eames , Senior Ass istant Attorney General ; Sam uel L. Will iams

, Assistant Attorney General.

Befo re DAVI S, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

NOTICE: This opinion is subject to for mal revi sion before pu blication in Paci fi c Reporter T hi rd. Rea ders

are requested to notify the Clerk of th e Sup reme C ourt, Supreme Court Building, Cheyenne, Wyomin g 82002, of any typographical or other formal errors so that correction may be made befo re f inal pub lication in

th e permanent volum e.1 FOX

, Justice

.

[¶1] Mr. Newnham failed to return to a Volunteers of America fac i lity i n 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 custo dy prio r to his sentence on the escape charge , 111 days, to be credited to his underlyin g sentence for property

destruction.

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

credit ed the 111 days to either sentence

. He filed an inmate communication form asking the Department to credit him the time

. T he 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 be cause he had not received

credit for the 1 11 days spent in jail after he was arrested for escape

. The district court

denied his motion and found that Mr. Newnham re ceived all the credit for time served in the property destruction case and , there fore, he w as not entitled to any cre dit 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,

1 118 (Wyo. 2016) ( ci ting Endris v. State , 2010 WY 73, ¶ 13, 233 P.3d 578, 581 (Wyo. 2010)). “ A sentence is illegal if i t violates the constitution or other law.” Candelario

, 2016 WY 75, ¶ 5, 375 P. 3d at 1118

. “Whether a sentence is illegal is a qu estion 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

, 201 1 WY

1 5 1 , ¶ 1 2

, 264 P.3d 18

, 21 (Wyo. 201 1 )).

[¶4] Mr. Newnham ’s appeal suf fers from two fatal flaws. First, the record does not support his suggest ion that his sentence does not include proper credit for his time served awaiting his e scape sentenc e

. 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

w ould pe rsist witho ut rega rd to the defendant’s ability to post bond in th e 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 ti me served while awaiting sentencing on an escape charge. Th e distr ict court instead applied the credit towards the underlying conviction.

Id. at 1281

. Similarly, t he district court appropriately credited Mr. Newnham’s time served to the underlying prope rty destruction sentence

.2 [¶5] Second, if Mr . Newnh am’s compla int 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. “R ule 35 addresses only s entences which are illega l in fact, n ot sent ences 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 1 206, 1213 (Wyo. 2014) )

. “Rule 35 authoriz es chal lenges to i llegal sentenc es o nly. An illegal sentence is defined as one which exceeds statutory limits, imposes multiple terms of imprisonment for the same offense, or

otherwise violates constitution s or th e law. ” Candelario , 2016 WY 75, ¶ 9, 375 P.3d at

1119 (inte rnal qu otations om itted). The Department of Corrections’ administration of

Mr. Newnham’s sentence do e s not “pertain to the validity of the underlying sentence

. ”

Id

.

[¶6] The district court appropr iately credited the time Mr. Newnham serve d after h is

arrest in the escape cas e 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 ch allenge the Department of Corrections’ adm inistrati on of

a s e ntence . Affirmed

.