IN THE SUPREME COURT, STATE OF WYOMING
2026 WY 98
APRIL TERM, A.D. 2026
September 14, 2026
BRIAN JOESEPH MELBER,
Appellant
(Defendant),
v.
S-26-0065
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Natrona County
The Honorable Catherine E. Wilking, Judge
Representing Appellant:
Brian Joeseph Melber, pro se.
Representing Appellee:
Keith G. Kautz, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney
General; Kristen R. Jones, Senior Assistant Attorney General; Donovan Burton,
Assistant Attorney General.
Before BOOMGAARDEN, C.J., GRAY, FENN, JAROSH, and HILL, 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 typographical or other formal errors so correction may be made before final publication in the permanent volume.
JAROSH, Justice.
[¶1] Brian Joeseph Melber appeals the denial of his motion to correct an illegal sentence,1 claiming the district court improperly failed to credit him with time served while he was in jail in Iowa. Mr. Melber also appeals the district court’s order denying his motion for appointment of counsel to represent him in this appeal. Finding no error, we affirm the district court’s denial of Mr. Melber’s motion to correct an illegal sentence. This Court lacks jurisdiction to consider the denial of Mr. Melber’s motion for appointment of counsel because he failed to properly appeal the issue.
ISSUE
[¶2] The dispositive issues in this case are:
1. Did the district court err when it refused to award Mr. Melber
presentence incarceration credit on his Wyoming sentence for the entire
time he spent in an Iowa jail?
2. Does this Court have jurisdiction to consider Mr. Melber’s challenge to
the order denying him appointed counsel?
FACTS
[¶3] In June 2023, Mr. Melber was charged with one count of conspiracy to deliver fentanyl in Natrona County, Wyoming. The State obtained a warrant to arrest Mr. Melber.
[¶4] Before police could arrest Mr. Melber, he left Wyoming. On December 22, 2023, police in Waterloo, Iowa, learned of the Wyoming arrest warrant and sought to arrest Mr. Melber in Iowa. Mr. Melber initially eluded Iowa police in his vehicle but ultimately collided with a police vehicle. Iowa authorities arrested Mr. Melber and charged him with one felony and one misdemeanor for his actions while eluding Iowa police.
[¶5] After spending 259 days in an Iowa jail, Mr. Melber pleaded guilty to both Iowa charges on September 6, 2024. He received suspended prison sentences and probation. Wyoming subsequently determined Mr. Melber was available for extradition from Iowa to face the fentanyl conspiracy charge. Mr. Melber remained in jail in Iowa until Wyoming authorities took physical custody of him later that month.
1
Mr. Melber’s motion was captioned as a “motion for sentence reduction,” but presented as a motion to correct an illegal sentence under Wyoming Rule of Criminal Procedure (W.R.Cr.P.) 35(a). We will refer to the motion as a motion to correct an illegal sentence for ease throughout this opinion.
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[¶6] On January 30, 2025, in Natrona County District Court, Mr. Melber pleaded guilty to one count of conspiracy to deliver fentanyl. On July 10, 2025, the district court sentenced Mr. Melber to four and a half to six years in prison. Mr. Melber requested credit to his sentence for time served, and calculated that amount beginning with the date of his Iowa arrest and incarceration and ending with his sentencing in Wyoming. The State argued Mr. Melber was only entitled to credit from September 6, 2024, when the proceedings in Iowa concluded and Mr. Melber became available for extradition from Iowa to Wyoming. Between that date and the date of his Wyoming sentencing hearing, 307 days elapsed. The district court awarded Mr. Melber only 307 days of credit.
[¶7] On July 16, 2025, Mr. Melber filed a notice of appeal, but after “weighing all the possibilities, options and facts” with the assistance of counsel, Mr. Melber filed a waiver of appeal and a motion for voluntary dismissal of appeal. This Court entered an order dismissing Mr. Melber’s appeal.
[¶8] In January 2026, Mr. Melber filed a pro se motion for sentence reduction and requested a “correction of an illegal sentence.” He claimed the district court illegally sentenced him because it did not credit him for the 259 days he was incarcerated in an Iowa jail prior to resolution of the Iowa case. He argued his time in the Iowa jail was caused “solely” by the Wyoming charges because he would not have committed the additional crimes in Iowa if law enforcement had not attempted to arrest him on the Wyoming warrant.
[¶9] The State argued the district court’s award of 307 days of credit was the correct computation – beginning with the day the Iowa charges were resolved and ending with his sentencing in Wyoming. The State contended Mr. Melber was not entitled to additional credit for the time he spent in Iowa before resolution of the case there because that confinement could be attributed to “separate choices with separate consequences.”
[¶10] The district court denied Mr. Melber’s motion, and he filed a notice of appeal with this Court on February 26, 2026. The same day, he also filed a “motion for leave to proceed on appeal in forma pauperis and for appointment of counsel.” On March 2, 2026, the district court granted his request to proceed in forma pauperis but denied his request for appointment of counsel. Mr. Melber did not appeal that denial, although he did file a motion to reconsider.2 This appeal followed.
DISCUSSION
Mr. Melber is not entitled to credit for the 259 days of Iowa confinement
prior to resolution of the case there.
2
The district court did not address Mr. Melber’s motion to reconsider.
2
[¶11] Mr. Melber challenges the district court’s order denying his motion to correct an illegal sentence and not awarding him credit for his entire incarceration in Iowa. The issue before us is whether he is entitled to credit for the 259 days of Iowa confinement prior to resolution of the case there.
[¶12] This Court reviews de novo whether a district court imposed an illegal sentence. Said v. State, 2024 WY 58, ¶ 13, 549 P.3d 138, 141 (Wyo. 2024). A sentence that fails to include proper presentence confinement credit constitutes an illegal sentence. Id. A criminal defendant is entitled to credit against both the minimum and maximum terms of a sentence for time spent in presentence confinement when that confinement was due solely to the defendant’s financial inability to post bond on the offense for which the defendant was ultimately convicted and sentenced. Abitbol v. State, 2008 WY 28, ¶ 12, 178 P.3d 415, 418 (Wyo. 2008).
[¶13] A defendant, however, is not entitled to credit for confinement that would have persisted regardless of the defendant’s financial ability to post bond on the charges for which the defendant is eventually convicted and sentenced. Id. When multiple crimes are involved, the district court must determine whether incarceration is solely attributable to the offense at hand and whether the incarceration was caused by intervening crimes, rather than an inability to post bond on the original charge. Said, ¶ 16, 549 P.3d at 141.
[¶14] Mr. Melber is not entitled to credit for the 259 days he spent incarcerated in Iowa before resolution of his case there. Mr. Melber fled to Iowa after Wyoming issued an arrest warrant, and while in Iowa, committed additional offenses. He was arrested and held in an Iowa jail on those charges. Mr. Melber’s criminal conduct caused his Iowa confinement which is separate from his Wyoming offense. Further, while Mr. Melber’s Iowa charges remained pending, he was not held pursuant to the Wyoming warrant during those 259 days, nor was his confinement caused by an inability to post bond on the Wyoming charge. He also did not become available for extradition to Wyoming until the Iowa proceedings were fully resolved. The Iowa charges provided an independent basis for his continued confinement.
[¶15] The existence of Mr. Melber’s active Wyoming warrant does not alter our conclusion. The relevant inquiry is whether his confinement was attributable solely to his inability to obtain release on the Wyoming offense, or whether he would have remained confined due to the separate Iowa charges. See Abitbol, ¶¶ 12, 15, 178 P.3d at 418-419. Under Abitbol, when a defendant’s presentence confinement would have continued because of separate criminal charges regardless of the defendant’s ability to post bond on the offense for which credit is sought, that confinement is not attributable solely to that offense and is not properly credited against that offense’s sentence. Id. at ¶ 15, 178 P.3d at 419.
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[¶16] That is precisely what occurred here. During the 259-day period at issue, the Iowa charges provided an independent basis for Mr. Melber’s continued confinement. Even assuming the Wyoming warrant contributed to his initial detention, Mr. Melber would have remained confined because of the separate Iowa charges. Thus, the Wyoming warrant did not cause the confinement for purposes of presentence credit and Mr. Melber is not entitled to receive credit against his Wyoming sentence for that period.
[¶17] Because Mr. Melber’s incarceration resulted from his additional criminal conduct and would have continued regardless of his ability to post bond in the Wyoming case, the district court properly declined to award additional credit. See Said, ¶¶ 15-17, 549 P.3d at 141-42 (finding credit for 153 days of confinement on new charges was unavailable because the confinement was not due solely to an inability to post bond on the offenses for which credit was sought).
[¶18] Mr. Melber also argues that, but for the existence of the Wyoming offense and warrant, he would not have fled to Iowa and committed the Iowa offenses that resulted in his confinement. Even accepting that premise, it does not establish that his Iowa confinement was attributable solely to the Wyoming offense. Once Mr. Melber committed the Iowa offenses, those offenses provided an independent basis for his arrest and continued confinement, which would have persisted regardless of his ability to post bond on the Wyoming charge. Under Abitbol and Said, that intervening, independent basis for confinement defeats his claim to credit for the 259 days.
[¶19] Mr. Melber also contends that the district court’s judgment and sentence violated W.R.Cr.P. 32 when it did not credit him for the time he spent confined in Iowa prior to resolution of the case there. We disagree. Rule 32(c)(2)(E) requires a sentencing order to “[i]nclude a finding of all time served by the defendant in presentence confinement for any sentenced offense[.]” Davis v. State, 2024 WY 24, ¶ 7, 543 P.3d 931, 933 (Wyo. 2024) (citing W.R.Cr.P. 32(c)(2)(E)). Rule 32(c)(2)(F) further requires the court to “state the extent to which credit for presentence confinement is to be given for each sentenced offense.” Cruzen v. State, 2023 WY 5, ¶ 17, 523 P.3d 301, 305 (Wyo. 2023).
[¶20] Those requirements do not mean, however, that every day of confinement must be credited against every sentenced offense. See Davis, ¶ 7, 543 P.3d at 933 (citing Palmer v State, 2016 WY 46, ¶ 13, 371 P.3d 156, 159 (Wyo. 2016) (“[Rule 32] does not require that presentence confinement credit be given for every sentenced offense.”). Said another way, Rule 32 requires the court to address applicable presentence confinement credit in the judgment and sentence, but Rule 32 does not require credit for confinement that is not attributable solely to the offense for which the defendant was sentenced. Because Mr. Melber was not entitled to credit for the 259 days of Iowa confinement prior to resolution of the case there, the district court’s judgment and sentence complied with Rule 32.
4
This Court lacks jurisdiction to consider Mr. Melber’s challenge to the
order denying him appointed counsel.
[¶21] Mr. Melber next argues the district court erred when it denied his request for courtappointed counsel in this appeal. We do not have jurisdiction to consider his challenge.
[¶22] Wyoming Rule of Appellate Procedure (W.R.A.P.) 1.03(a) states “[t]he timely filing of a notice of appeal, which complies with [W.R.A.P.] 2.07(a), is jurisdictional.” American Collection Systems, Inc. v. Judkins, 2024 WY 66, ¶ 7, 550 P.3d 549, 554 (Wyo. 2024). To comply with W.R.A.P. 2.07(a)(2), a party’s notice of appeal must “identify the judgment or appealable order being appealed.” Id. (quoting EOG Res. Inc. v. JJLM Land, LLC, 2022 WY 162, ¶ 41, 522 P.3d 605, 616 (Wyo. 2022)). “A notice of appeal ‘only perfects an appeal of the order(s) identified in the notice.’” Id. However, if an order is not properly identified in the notice of appeal, this Court is without jurisdiction to review it. Id. We “cannot waive W.R.A.P. 2.07(a)’s jurisdictional requirements by addressing arguments and issues that are not properly before us.” Id., ¶ 9, 550 P.3d at 554.
[¶23] After the district court denied Mr. Melber’s motion to correct an illegal sentence, he filed a notice of appeal on February 26, 2026. On the same day, Mr. Melber filed a “motion for leave to proceed on appeal in forma pauperis and for appointment of counsel.” The district court granted Mr. Melber’s request to proceed in forma pauperis but denied his request for appointed counsel on March 2, 2026, after Mr. Melber had already filed his notice of appeal. Mr. Melber did not amend his original notice of appeal or otherwise appeal the denial of appointed counsel.
[¶24] Because the district court’s subsequent denial of Mr. Melber’s request for appointed counsel had not yet been entered when he filed his notice of appeal, Mr. Melber’s February 26, 2026, notice of appeal cannot be construed as a notice of appeal of the denial of his motion for appointed counsel. Moreover, because Mr. Melber did not separately appeal the March 2, 2026, order denying appointed counsel, he failed to properly perfect an appeal from that order. Accordingly, this Court lacks jurisdiction to review the denial of Mr. Melber’s request for appointed counsel. See Am. Collection Sys., ¶ 10, 550 P.3d at 555.
CONCLUSION
[¶25] Mr. Melber is not entitled to credit for the 259 days he spent incarcerated in Iowa prior to resolution of the charges there because his confinement would have persisted regardless of his financial ability to post bond on the charges for which he was eventually convicted and sentenced. Because Mr. Melber was not entitled to credit for that portion of his Iowa confinement, the district court’s judgment and sentence complied with Rule 32. Finally, we are without jurisdiction to review the denial of Mr. Melber’s request for appointed counsel.
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[¶26] Affirmed.
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