### IN**T HE SUPREME COURT, STATE OF WYOMING**  **2016 WY** **9 OCT** **OBER TERM, A.D. 201**  **5**

**January 21, 2016**
KYLE BENTON ASKIN, Appellant (Defendant),

v. THE STATE OF WYOMING, Appellee (Plaintiff). S

- 15

-0162

**Appeal fro m the District Court of Natrona**  **Cou nty**  **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 Co unsel; Kirk Allan Morgan, Senior Assistant Appellate Counsel. **Representing A**

**ppellee:** Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Cai tlin F. Young, Assistant Attorney General.
**Before BURKE, C.J., and HILL, DAVIS, FOX**  **, and KAUTZ** 

**, JJ.**

**NOT ICE:**  **T his 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

**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. **ISS UE**  [¶2] Appella

nt 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 rev oke his probation. Id. , ¶ 5, 314 P.3d at 1183. The district court rev oked Appel lant’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 reg ister. 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 Aug ust 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 fa ilure to reg ister and the State agreed to recommend a sentence of 18 to 24 months imprisonment.2

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 suffic ient 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 ag

ree. 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 rev iew the district court’s refusal to g rant 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 Daniel s 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 g rant 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 that3 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 Sweet s 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

Ev en thoug h 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] I n Sweets v. State, ¶ 3, 36 P.3d at 1131, the defendant was serving a prison sentence for indec ent 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 detention4 if (1) the detention is not due to the defendan t’ s indigency, and (2) the sum of the time spent in presentence detention plus the sentence given upon conv iction 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 Wi lson 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 hav e 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); Wi lson v. State, 896 P.2d 1327 (Wyo. 1995). In Wi lson , 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 hav e previously recognized that judicial discretion is “a composite of many things, among w hich are conclusions drawn from objective criteria; it means a sound judgment exercised with reg ard 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 hav e stated that “An abuse of discretion occurs when a5

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] Rev

ersed and remanded for proceedings consistent with this opinion.