### IN THE SUPREME COURT, STATE OF WYOMING

201 3 W Y 7

OCTOBER TERM, A.D. 2012

J a n u a r y 1 7
, 2 0 1 3

TREVOR C. LAKE,

Appellant (Defendant),

v.

THE STATE OF WYOMING,

Appellee (Plaintiff). S

- 12

- 0055

Ap peal 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:
G regory 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

B e f o r e K I T E
, C

. J

. , a n d H I L L
, V O I G T
, B U R K E
, J J

. , a n d G O L D E N
, J

. ( R e t i r e d )

N O T I C E : T h i

s o p i n i o n i s s u b j e c t t o f

o r m a l r e v i

s i o n b e f o r e p u b l i c a t i o n in Pacific Reporter Third.
R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e C l e r k o f t h e S u p r e m e C o u r t , S u p r e m e C o u r t B u i l d i n g , C h e y e n n e , W

y o m i n g 8 2 0 0 2
, o f a n y t y p o g r a p h i c a l o r o t h e r f

o r m a l e r r o r s s o t h a t c o r r e c t i o n m a y b e

m a d e b e f o r e f i n a l p u b l i c a t i o n i n t h e p e r m a n e n t v o l

u m e

.1

G O L D E N

, J

u s t i c e ( R e t i r e d )

.

[¶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 incarce ration. We affirm.

I S S U E S

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

I

. W h e t h e r 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.

I I

. W h e t h e r a n i l l e g

a l S e n t e n c e m

u s t b e c o r r e c t e d w

h e n

c r e d i t f o r t i m e s e r v e d w a s i m

p r o p e r l y c a l c u l a t e d a n d a p p l i e d

a t S e n t e n c i n g

.

F A C T S

[¶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

ta king 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 t h e C r o o k C o u n t y D e t e n

t i o n C e n t e r l a t e r t h a

t d a y , h e t u r

n e d h i s

m edications over to an officer who placed them in the facility’ s “ m ed room. ” On November 23, 201 0, following a report from Lake’s cell mate, Lake’ s cell was searched.
Officers discovered elev

en 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 Jun e 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

cour t issued an arrest warrant on June 1, 2011, and on that same date, the warrant was served on Lake in jail.2

[ ¶ 6 ] O n J

u n e 1 4

, 2 0 1 1

, p u r s u a n

t t o a p l e a d e a l t

h a t r e d u c e d t h e o r i g i n a l c h a r g

e s a g a i n s t
L a k e f r o m a g g r a v a t e d a s s a u l t t o m i s d e m e a n o r r e c k l e s s e n d a n g e r i n g , L a k e e n t e r e d a
g u i l t y p l e a t o r e c k l e s s e n d a n g e r i n g

. T h e d i s t r i c t c o u r t s e n t e n c e d h i m t o s e r v

e a o n e

- y e a r j a i l s e n t e n c e , w i t h c r e d i t f o r 2 4 2 d a y s o f p r e s e n t e n c e i n c a r c e r a t i o n

. T h e s e n

t e n c e f o r t h e

r e c k l e s s e n d a n g

e r i n g c o n v i c t i o n t h

u s e x p i r e d o n O c t o b e r 1 5

, 2 0 1 1

.

[¶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. Neith er 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 stat ed 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 Ju ror 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 o ccurred between the court and the attorneys:

T H E C O U R T : A l l r i g h t

. D o w e h a v

e a n y t h i n g f u r t h e r b e f o r e w e b r i n g t h e j u r y i n a n d s e a t t h e m f o r p u r p o s e s o f t h e

m a t t e r ?

[ P R O S E C U T O R ] : Y o u r H o n o r , 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 Campbel l County within 30 days. I
don’ t know if that has any affect [sic].

T H E C O U R T : W e l l

, n o w i s n o t a t i m e t o r a i s e i t

. Y o u
p a s s e d f or qualificati ons. 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.3 I t h i n k s h e w a s

. I t h i n k s h e j u s t r e c e n t l y c h a n g e d

. Sh e’ 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.

A n y t h i n g e l s e f

r o m t h e d e f

e n s e ?

[ D E F E N S E A T T O R N E Y ] : N o t h i n g , Y o u r H o n o r , t h a n k y o u

.

[¶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, whic h expired on October 15, 2011. T he 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 s entence on December 21, 2011, and Lake timely filed his Notice of Appeal on January 6, 2012.

S T A N D A R D O F R E V I E W

[¶12] Lake ’ s chal l e n g

e t o j u r o r q u a l i f

i c a t i o n s p r e s e n t s i s s u e s o f s t a t u t o r y i n t e r p r e t a t i o n 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 T o r r e s v

. S t a t e 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

.

T h e q u e s t i o n o f w

h e t h e r a s e n t e n c e i s i l l e g a l b e c a u s e i t d o e s n o t i n c l u d e p r o p e r c r e d i t f o r t i m e s e r v e d i s a q u e s t i o n o f
l a w t h a t w e r e v i e w d e n o v o

. 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).4 D I S C U S S I O N

A

. J u r o r Q u a l i f

i c a t i o n s

[¶14] I n 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 count y. 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 peri od preceding the April 1 certification of the base jury list.

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

established rules:

I n i n t e r p r e t i n g s t a t u t e s , o u r p r i m a r y c o n s i d e r a t i o n is to determine the legislature’ s intent. All statutes must be

c onstrued 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. W e 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

a r r a n g ement 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.

M o r e o v e r , w e w i l l n o t e n l a r g

e , s t r e t c h

, e x

p a n d

, o r

e x t e n d a s t a t

u t e t o m a t t e r s t h a

t d o n o t f a l l w i t h i n i t s e x

p r e s s
p r o v i s i o n s

.5 O n l y i f w e d e t e r m

i n e t h e l a n g

u a g e o f a s t a t u t e i s

a m b i g u o u s w i l l w e p r o c e e d t o t h e n e x t s t e p , w

h i c h i n v o l v e s

a p p l y i n g g

e n e r a l p r i n c i p l e s o f s t a t u t o r y c o n s t r

u c t i o n t o t

h e l a n g u a g e o f t h e s t a t u t e i n o r d e r t o c o n s t r u e a n y a m b i g u o u s l a n g u a g e t o a c c u r a t e l y r e f

l e c t t h e i n t e n t o f t h e l e g

i s l a t u r e

. I f

t h i s C o u r t d e t e r m

i n e s t h a t t h e l a n g

u a g e o f t h e s t a t u t e i s n o t

a m b i g u o u s , t h e r e i s n o r o o m f

o r f u r t h e r c o n s t r

u c t i o n

. W e w i l l

a p p l y t h e l a n g u a g e o f t h e s t a t u t e u s i n g i t s o r d i n a r y a n d

o b v i o u s m e a n i n g

.

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. o f Appeals of City of Cheyenne , 2010 WY 2, ¶ 9, 222 P.3d 158, 162 (Wyo. 2010)).

[¶16] The Wyoming sta tutes 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 ( 9 th
ed. 2009 ). The common process for compiling and returning a jury list is described in the following authority:

W

h i l e t h e s t a t

u t e s v a r y a s t o c e r t a i n d e t a i l s , t h e

e s s e n t i a l s t e p s i n m a k i n g u p t h e j u r y l i s t c o n s i s t i n : ( 1 ) A

s e l e c t i o n b y t h e p r

o p e r o f f i c e r s o f a l i s t o f n a m e s o f t h o s e
p e r s o n s q u a

l i f i e d t o s e r v

e a s j u r o r s

. ( 2 ) T h e s i g n i n g ,
c e r t i f i c a t i o n a n d r e

t u r n o f t h i s l i s t t o t

h e c l e r k o f t

h e c o u r t

, t o b e f i l e d o r r e c o r d e d b y h i m

. ( 3 ) T h e c o p y i n g o f t h e n a m e s

c o n t a i n e d o n t

h e l i s t u p o n s e p a r a

t e s l i p s o r b a l l o t s w

h i c h a r e d e p o s i t e d i n t

h e j u r y b o x o r w

h e e l f r o m w h i c h t h e p a n e l i s

s u b s e q u e n

t l y d r a w n

.

3 5 C

. J

. J u r i e s § 213 (1924) ( e mphasis 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 j urors 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 “ l i s t6

o f p e r s o n s q u a l i

f i e d 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) ( e mphasis adde d). 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. St at. 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. Cr im . 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 ba se 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 prec eding 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 quali fied 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

. S e n t e n c i n g C r e d i t f o r P r e s e n t e n c e I n c a r c e r a t i o n

[¶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 i n 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 an d instead credited his sentence for sixty

n i n e d a y s o f p r e s e n t e n c e i n c a r c e r a t i o n , r e p r e s e n t i n g t h e p e r i o d b e t w e e n t h e e x p i r a t i o n o f7

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

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

A c r i m i n a l d e f

e n d a n t i s e n t i t l e d t o c r e d i t a g a i n s t h i s s e n t e n c e f o r t h e t i m e h e w a s i n c a r c e r a t e d p r i o r t o s e n t e n c i n g , p r o v

i d e d

t h a t t h e c o n f

i n e m e n t w a s d u e t o h i s i n a b i l i t y a n d f a i l u r e t o
p o s t b o n d o n t h e o f

f e n s e f o r w h i c h h e w a s a w a i t i n g d i s p o s i t i o n

. T h e p u r

p o s e o f t h i s r

u l e i s t o p r o v i d e e q u a l

p r o t e c t i o n t o d e f

e n d a n t s w h o a r e u n a b l e t o p o s t b o n d b e c a u s e

o f t h e i r i n d i g

e n c e

. A d e f

e n d a n t i s n o t

, h o w e v

e r , e n t i t l e d t o

c r e d i t f o r t h e t i m e h e s p e n t i n c u s t o d y w h e n h i s c o n f

i n e m e n t

w o u l d h a v

e c o n t i n u e d d e s p i t e h i s a b i l i t y t o p o s t b o n d

.

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 separat e 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

c redit 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 1 83

- 84 (upholding district cou rt’ 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

- n i n e d a y s

a w a r d e d b y t h e d i s t r i c t c o u r t

, b u t t

h a t m i s c a l c u l a t i o n i s n o t a n i s s u e i n t h i s a p p e a l

.8

a n d L a k e i s t h u s n o t e n

t i t l e d t o c r e d i t f

o r t h e t i m e s p e n t s e r v i n g h i s s e p a r a t e s e n t e n c e f o r
t h e r e c k l e s s e n d a n g

e r i n g c o n v i c t i o n

.

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

- related conviction.

C O N C L U S I O N

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