Introduction

In Brewer v. State, the Wyoming Supreme Court reaffirmed and clarified an important rule in Wyoming sentencing law: when a district court’s oral pronouncement is silent about whether a sentence will run consecutively or concurrently with another sentence (including a term that may be reinstated by the parole board), the law presumes the sentences will run consecutively. The Court further held that a written judgment and sentence may expressly state that the new sentence “shall run consecutive to any other sentence” without rendering the sentence illegal, because such language simply memorializes the legal presumption triggered by the court’s silence.

The decision matters for defendants who are on parole or otherwise face the prospect of additional sentences, for prosecutors who negotiate plea agreements, and for sentencing judges who must craft clear, lawful pronouncements. It underscores that silence at sentencing in Wyoming—unlike in some jurisdictions—defaults to consecutive time, and that a later written judgment may confirm that default without creating a conflict with the oral sentence.

Parties: Appellant-Defendant Blake J. Brewer; Appellee-Plaintiff State of Wyoming. Court: Supreme Court of Wyoming. Author: Justice Fenn. Disposition: Affirmed.

Summary of the Opinion

Brewer pleaded guilty to felony theft for stealing merchandise valued at $1,887 from Walmart while he was on parole for a 2020 fraud-by-check conviction. The plea agreement recommended an 18–36 month sentence and restitution, but it was silent on whether the new sentence would run concurrently with or consecutively to any parole-revocation sentence that might be reinstated by the parole board.

At sentencing, the court was silent about concurrency or consecutiveness. In its written judgment, however, the court stated that Brewer’s sentence “shall run consecutive to any other sentence of [Mr. Brewer].” After correcting a clerical error in the range (via a nunc pro tunc order), the written judgment continued to state that the sentence would be consecutive.

Brewer appealed, arguing the sentence was “illegal” because: (1) the oral pronouncement did not impose consecutiveness, and (2) the written judgment made the sentence consecutive to a parole-revocation term that had not yet been reinstated. The Wyoming Supreme Court rejected both arguments, holding that under Wyoming law, silence at sentencing creates a presumption of consecutive sentences and the written judgment merely confirmed that presumption. Relying on Keefe v. State, 2024 WY 93, 555 P.3d 492 (Wyo. 2024), the Court affirmed.

Detailed Analysis

Precedents Cited

• Keefe v. State, 2024 WY 93, 555 P.3d 492 (Wyo. 2024): Keefe involved a defendant on parole who later received a new sentence while parole revocation was pending. The district court’s judgment was silent on whether the new sentence would run consecutive or concurrent to the reinstated parole term. The parole board treated the new sentence as consecutive. The defendant claimed the sentence was illegal. The Wyoming Supreme Court held that the district court’s silence presumptively made the sentence run consecutively, and the trial court could later confirm that understanding without abusing its discretion or rendering the sentence illegal.
• Bird v. State, 2015 WY 108, 356 P.3d 264 (Wyo. 2015); Endris v. State, 2010 WY 73, 233 P.3d 578 (Wyo. 2010): These cases supply the general standard governing “illegal sentences”: a sentence is illegal if it violates the constitution or other law. Whether a sentence is illegal is reviewed de novo, recognizing that sentencing is typically within the trial court’s discretion unless it crosses legal boundaries.

Brewer cites no contrary Wyoming authority, and the Supreme Court found Keefe controlling and dispositive on the key questions: (1) the legal effect of a silent oral pronouncement, and (2) whether a written judgment can memorialize consecutiveness without contradicting the oral sentence.

Legal Reasoning

1. Silence triggers a presumption of consecutiveness in Wyoming. The Court reiterates a settled Wyoming rule: when a sentencing court does not specify concurrency at the time of the oral pronouncement, separate sentences are presumed to run consecutively. This presumption applies even when the “other sentence” is not yet reimposed by the parole board. Thus, Brewer’s oral sentence—silent on the concurrency question—was, by operation of law, consecutive to any reinstated parole term.
2. The written judgment did not create a conflict; it confirmed the legal default. Brewer argued that the written judgment’s language (“shall run consecutive to any other sentence of [Mr. Brewer]”) made the sentence more severe than the oral pronouncement. The Court disagreed: because the law already presumes consecutiveness when the judge is silent, the written judgment merely codified the existing legal consequence. There was no increase and therefore no illegality.
3. Consecutiveness to a not-yet-reinstated parole term is permissible. Consistent with Keefe, the Court held that the law’s presumption can attach even when the parole board has not yet acted. The Department of Corrections and parole authorities can—and do—sequence the sentences accordingly, treating the new sentence as consecutive to the reinstated parole term unless the court expressly orders concurrency.
4. Nunc pro tunc correction was proper and immaterial to the consecutiveness issue. The district court initially reduced the maximum term in writing to 24 months but corrected the clerical error via an order nunc pro tunc to 36 months to match the oral pronouncement and plea agreement. The consecutiveness language was unchanged and, as explained, lawful. The correction itself did not render the sentence illegal; it restored fidelity to the oral pronouncement.
5. Standard of review and “illegal sentence.” Applying Bird and Endris, the Court reviewed the “illegal sentence” claim de novo, not for abuse of discretion. Finding no conflict with constitutional or statutory law, and adherence to controlling precedent (Keefe), the Court held Brewer’s sentence was lawful.

Impact and Practical Implications

Brewer fortifies and operationalizes the Keefe rule with practical clarity for participants in Wyoming’s criminal system:

• Defense counsel: If concurrency with a present or future sentence (including a parole revocation term) is important, it must be explicitly requested and obtained on the record at the oral pronouncement. Silence will not help your client; it will produce a consecutive sentence by default.
• Prosecutors: If consecutive time is desired, it may be sufficient to leave the plea agreement silent on concurrency and argue for an “independent sentence,” as the State did here. Absent an express concurrent directive from the court, the presumption will take hold.
• Trial judges: To avoid post-judgment litigation, clearly state whether sentences are concurrent or consecutive at the oral pronouncement, particularly when a defendant is on parole, probation, or faces other pending sentences. If a judge intends concurrency, it must be expressed; otherwise, the written judgment may (and should) memorialize the presumptive consecutiveness. Drafting tip: for clarity, identify the specific sentence(s) to which consecutiveness applies rather than using broad “to any other sentence” phrasing, even though such phrasing is lawful under Brewer.
• Parole board and corrections administrators: Brewer provides appellate confirmation that, when the sentencing court is silent, you may treat the new sentence as consecutive to a reinstated parole term, even if revocation occurs after the new sentence is imposed.
• Plea bargaining: Parties should address concurrency expressly in the agreement where it matters. A silent plea agreement will not overcome the legal presumption triggered by a silent sentencing.
• Appellate practice: Claims that a written judgment’s consecutive language conflicts with a silent oral pronouncement are unlikely to succeed in Wyoming after Keefe and Brewer. The written judgment’s express statement of consecutiveness will be viewed as merely reflecting the legal presumption.

Finally, Wyoming’s approach aligns with the federal default rule in 18 U.S.C. § 3584(a) (multiple terms imposed at different times run consecutively unless the court orders concurrency). Practitioners moving between jurisdictions should note that some states presume concurrency; Wyoming does not.

Complex Concepts Simplified

• Consecutive vs. Concurrent: Consecutive sentences are served one after the other; concurrent sentences are served at the same time. If you have two 2-year sentences: consecutive equals 4 years; concurrent equals 2 years.
• Silence at Sentencing: When the judge does not say whether the sentence runs concurrently or consecutively, Wyoming law presumes the new sentence is consecutive to any other sentence (including a term that may be reinstated by a parole board).
• Parole Revocation/Reinstated Sentence: If a person on parole violates conditions, the parole board may “revoke” parole and the remainder of the original sentence is “reinstated.” Brewer holds that a new sentence imposed while revocation is pending will be treated as consecutive unless the judge expressly orders concurrency.
• Oral Pronouncement vs. Written Judgment: The sentence announced in open court (oral pronouncement) controls. A written judgment should align with it. When the oral pronouncement is silent on concurrency, a written judgment stating “consecutive” does not change or increase the sentence— it simply makes explicit what the law already presumes.
• Nunc Pro Tunc: Latin for “now for then.” Courts use nunc pro tunc orders to correct clerical mistakes so the written record matches what the court actually decided earlier. In Brewer, a nunc pro tunc order fixed the maximum term from 24 months to the orally pronounced 36 months.
• Illegal Sentence: A sentence is “illegal” if it violates the constitution or governing law. It is reviewed de novo on appeal. In Brewer, because Wyoming law presumes consecutiveness when the judge is silent, the sentence was not illegal.

Conclusion

Brewer v. State cements a clear, defendant-impactful rule: in Wyoming, if the sentencing court does not explicitly say that a sentence will run concurrently, the sentence is presumed to run consecutively to any other sentence—including a parole-revocation term that has not yet been reinstated. A written judgment that expressly states “consecutive” does not render the sentence illegal; it conforms to the legal presumption created by silence.

The decision aligns with Keefe and underscores the practical importance of clarity at sentencing. Defense counsel seeking concurrency must secure an explicit oral pronouncement; prosecutors can often rely on the silence-based presumption to achieve consecutiveness; and courts should avoid ambiguity by saying exactly what they intend. Brewer thus promotes predictability in sentence administration while providing a straightforward roadmap for avoiding avoidable sentencing disputes.