IN THE SUPREME COURT, STATE OF WYOMING

2016 WY 9

 OCTOBER TERM, A.D. 2015

January 21, 2016

KYLE BENTON ASKIN,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-15-0162

Appeal from the District Court of Natrona County

The Honorable Daniel L. Forgey, Judge

Representing Appellant:

Office of the State Public Defender: Diane M. Lozano, State Public Defender; 

Tina N. Olson, Chief Appellate Counsel; Kirk Allan Morgan, Senior Assistant 

Appellate Counsel. 

Representing Appellee:

Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; 

Christyne M. Martens, Senior Assistant Attorney General; Caitlin F. Young, 

Assistant Attorney General.

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

[¶1] Appellant, Kyle Benton Askin, claims the district court applied an improper legal 

standard in denying his request for credit for time served in presentence confinement. He 

contends the district court made its decision based upon an erroneous understanding that 

it lacked the discretionary authority to award credit. We agree with Appellant and, 

accordingly, we reverse and remand to the district court.

ISSUE

[¶2] Appellant presents the following issue:

Did the district court apply the correct legal standard in 

determining whether to award Appellant credit for time spent 

in presentence confinement?

FACTS

[¶3] In 2007, Appellant pled guilty to two counts of failure to register as a sex offender 

and received concurrent sentences, which were suspended in favor of probation. Askin v. 

State, 2013 WY 162, ¶ 4, 314 P.3d 1182, 1183 (Wyo. 2013). As part of his probation, 

Appellant was required to complete an adult community corrections program at a 

community corrections facility. Id. After Appellant left the program prior to completion,

the State charged him with escape and petitioned to revoke his probation. Id., ¶ 5, 314 

P.3d at 1183. The district court revoked Appellant’s probation and re-imposed the 

suspended sentence of four to six years for failure to register as a sex offender. Id.

Appellant pled guilty to the escape charge and was sentenced to three to seven years

imprisonment. The district court suspended the new sentence in favor of four years of 

supervised probation, to be served consecutively to the re-imposed sentence for failure to 

register. Id.

[¶4] In June 2014, the Natrona County Sheriff’s Office discovered that Appellant was 

not living at the address he provided when he updated his sex offender registration in 

March of that year. As a result, Appellant’s probation was revoked and the prison 

sentence for Appellant’s escape conviction was re-imposed. Additionally, on August 6, 

2014, while Appellant was incarcerated, the State charged him with one count of failure 

to register as a sex offender in violation of Wyo. Stat. Ann. §§ 7-19-302 and 7-19-307(c) 

(LexisNexis 2013). Appellant was subsequently transported from the Wyoming Medium 

Correctional Institution in Torrington to the Natrona County jail for disposition of the 

charge of failure to register.

[¶5] Pursuant to a plea agreement, Appellant pled guilty to the charge of failure to 

register and the State agreed to recommend a sentence of 18 to 24 months imprisonment.
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The district court accepted the plea and imposed the recommended sentence. The court 

denied Appellant’s request for credit for time spent in presentence confinement, stating 

that it did not “believe, at least at this time, that there is sufficient legal authority to award 

any credit for time served in this case.” This appeal followed.

DISCUSSION

[¶6] In his only issue, Appellant claims the district court erred by failing to consider his 

request for credit for time spent in presentence confinement. Appellant asserts the district 

court incorrectly believed that it did not have authority to award credit for time spent in 

presentence confinement where, as in the present case, the defendant was serving time for 

an unrelated conviction at the same time. Appellant contends that Wyoming law clearly 

provides that a district court has discretion to award such credit. Accordingly, he 

requests that we remand to the district court to consider his claim for credit for time 

served under the appropriate legal standard.

[¶7] The State responds that presentence confinement does not include confinement 

that persists without regard to the defendant’s ability to post bond. It contends that, as a 

result, the time Appellant spent in prison during adjudication of this matter does not meet 

the definition of “presentence confinement.” The State claims there is a “disconnect” 

between the district court’s authority to award credit for presentence confinement and the 

fact that Appellant’s detention does not qualify as presentence confinement.

[¶8] According to the State, because Appellant did not object to the district court’s 

refusal to award credit for presentence confinement, we should review for plain error. 

We do not agree. Appellant raised the issue before the district court when he requested

credit for time served in presentence confinement. Accordingly, we find that the plain 

error standard of review does not apply. We review the district court’s refusal to grant 

the requested credit for an abuse of discretion. Daniels v. State, 2014 WY 125, ¶ 11, 335 

P.3d 483, 486 (Wyo. 2014).

[¶9] We addressed an issue similar to the one presented here in Daniels v. State. In that 

case, the district court denied the defendant’s request for credit for time spent completing 

an in-patient treatment program. Id., ¶ 5, 335 P.3d at 485. The court based its decision 

on the belief that it did not have authority to award such credit because the defendant was 

not subject to a charge of escape. Id. We explained that the district court has discretion 

to grant or deny credit for time served in presentence custody where such custody is not 

due to the defendant’s indigency and the sum of such time spent plus the sentence does 

not exceed the maximum allowable sentence:

A district court must award credit when a defendant is 

in official detention; however, it also has discretion to award 

credit in other circumstances. “The rule in Wyoming is that 
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the trial judge has discretion to grant or deny credit for time 

served in presentence custody where such custody is not due 

to the defendant’s indigency and the sum of such time spent 

plus the sentence does not exceed the maximum allowable 

sentence.” Hedge [v. State], 696 P.2d [51, 52 (Wyo. 1985)]. 

See also Jones v. State, 602 P.2d 378, 381 (Wyo. 1979). In 

Sweets v. State, 2001 WY 126, ¶ 7, 36 P.3d 1130, 1131-32 

(Wyo. 2001), the defendant was serving an earlier unrelated 

sentence when he negotiated a plea agreement which included 

credit for some of that time against his second sentence. 

Although we concluded the defendant’s detention did not 

meet the definition of presentence confinement because he 

was incarcerated on a different charge, we used the same 

rationale as in Hedge and Jones and concluded the district 

court had discretion to grant presentence confinement credit 

that the defendant was not otherwise entitled to receive. Id.

Daniels, ¶ 11, 335 P.3d at 486. In accordance with this rule, we held that 

Even though Mr. Daniels was not in official detention, 

the district court had discretion to award presentence 

confinement credit for the time he spent in in-patient 

treatment. See Sweets, supra. Contrary to the district court’s 

ruling at the second revocation disposition hearing, there was 

nothing in the law to prohibit it from granting credit under the 

circumstances presented here, and the district court erred as a 

matter of law by ruling it did not have authority to award such 

credit.

Id., ¶ 13, 335 P.3d at 487.

[¶10] In Sweets v. State, ¶ 3, 36 P.3d at 1131, the defendant was serving a prison 

sentence for indecent liberties with a minor when the State brought a charge of delivery 

of a controlled substance for acts which had occurred prior to his incarceration. The 

defendant was transported from the Wyoming State Penitentiary to the Sweetwater 

County jail and incarcerated there while he awaited trial on the drug delivery charge. Id. 

At the sentencing hearing, the district court awarded the defendant credit for 31 days 

spent in presentence confinement. Id. We concluded that

Sweets’ receipt of thirty-one days presentence credit at 

the time of his sentence for the second conviction is not 

contrary to the law. It is within the trial court’s discretion to 

grant or deny credit for time served in presentence detention 
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if (1) the detention is not due to the defendant’s indigency, 

and (2) the sum of the time spent in presentence detention 

plus the sentence given upon conviction does not exceed the 

maximum allowable sentence. Hedge v. State, 696 P.2d 51, 

52 (Wyo. 1985).

Sweets, ¶ 7, 36 P.3d at 1131.

[¶11] The State claims that our decision in Sweets is inconsistent with prior precedent, 

including Smith v. State, 932 P.2d 1281, 1282 (Wyo. 1997), Wayt v. State, 912 P.2d 1106, 

1109-10 (Wyo. 1996), and Wilson v. State, 896 P.2d 1327, 1328-29 (Wyo. 1995). Those 

cases, however, do not conflict with the decisions in Sweets and Daniels. Rather, they 

stand for the proposition that credit for presentence confinement is not required when the 

defendant is in custody on different charges. In Smith, 932 P.2d at 1282, we stated as 

follows:

In recent cases, we have made clear the proposition 

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. Wayt v. State, 912 P.2d 1106 (Wyo. 1996); 

Wilson v. State, 896 P.2d 1327 (Wyo. 1995). In Wilson, it was 

clear that Wilson would have remained in custody on another 

charge even if he had posted bond on the charge for which he 

sought presentence confinement credit. In Wayt, Wayt was 

held in Platte County on different charges than the one for 

which he was awaiting sentence in Natrona County. Under 

the circumstances, no credit was required.

While our decisions in Smith and the cases discussed therein hold that a defendant is not 

entitled to credit for time served when the defendant is in custody on unrelated charges,

they do not hold that the district court does not have discretion to award such credit. 

Accordingly, we are not persuaded by the State’s claim that Sweets or Daniels is contrary 

to this Court’s precedent.

[¶12] Based on our decisions in Daniels and Sweets, the district court had authority to 

award Appellant credit for time spent in presentence confinement. We have previously 

recognized that judicial discretion is “a composite of many things, among which are 

conclusions drawn from objective criteria; it means a sound judgment exercised with 

regard to what is right under the circumstances and without doing so arbitrarily or 

capriciously.” Sanchez v. State, 2013 WY 159, ¶ 10, 314 P.3d 1177, 1180 (Wyo. 2013). 

In determining “what is right under the circumstances,” it is essential that the court apply 

the applicable law. Indeed, we have stated that “An abuse of discretion occurs when a 
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court’s decision exceeds the bounds of reason or constitutes an error of law.” Goody v. 

Goody, 939 P.2d 731, 733 (Wyo. 1997). In this case, the district court was under the 

mistaken impression that it lacked the requisite authority to award credit for time served 

in presentence confinement. We note that the district court is not required to award 

Appellant credit. It must, however, make that decision with the understanding that it has 

the discretionary authority to award the requested credit.

[¶13] Reversed and remanded for proceedings consistent with this opinion.