¶1dissenting.
¶2[1 18] After careful review of the underlying facts, applicable case law, and the reasoning utilized by the majority in reaching its decision, I must respectfully dissent.
¶3[1191 The facts in this case are not complicated. While on parole, appellant committed a new crime. He was sentenced to a term of years at the Wyoming State Penitentiary on that new crime in 19983. Upon his return to the penitentiary, appellant's parole was revoked. However, the 1998 sentence did not indicate the timing of the sentence, i.e. whether it should be served concurrently with or consecutively to the original sentence if appellant's parole were revoked. Appellant sought a determination on this issue and posed that question to this court. We remanded the matter to the district court to correct the sentence by designating whether the 19983 sentence was to be served coneur-rently with or consecutively to the original sentence. On remand, the district court performed a review of "the entire transeript of the trial in this matter and of the sentencing." 110. In its review, the district court found that the record was essentially silent regarding the original sentencing court's intent on this timing matter and thus, relying on Apodaca v. State, 891 P.2d 83 (Wyo.1995) and similar case authority, it determined that the sentences were to be served consecutively. This appeal followed.
¶4[120] The determination we must make in this case is whether the district court abused its discretion when ordering the sentences to be served consecutively. When considering an abuse of discretion, we must determine whether the trial court could reasonably conclude as it did. Herrera v. State, 2003 WY 25, ¶ 10, 64 P.3d 724 ¶ 10 (Wyo. 2003). We look to whether the trial court exercised sound judgment with regard to what is right under the cireumstances without doing so arbitrarily or capriciously. Brown v. State, 2003 WY 72, ¶ 9, 70 P.3d 238, 9 (Wyo.2003). Our purpose is not to substitute our judgment for that of the trial court. Considering that the district court reviewed the entire record and applied the applicable case law, I would find no abuse of discretion.
¶5[121] The district court's determination is well within the bounds of the applicable law. In Apodaca, a case with almost exactly the same fact scenario as this case, Apodaca was convicted of a new crime while on parole and was sentenced to a term of years for the new crime. The trial court, aware that Apo-daca might have his parole revoked, refused to determine if the new sentence should be served consecutively or concurrently with his *1028parole sentence. Rather, the district court declined to act until the parole board determined whether Apodaca's parole would be revoked. The parole board later revoked Apodaca's parole, but the district court declined to take further action. Upon review of Apodaca's sentence, this court held that, when the trial court is silent, the presumption is that the sentences are to be served consecutively. Apodaca, 891 P.2d at 84-85.
¶6[122] This court's initial confirmation that no presumption of concurrency exists when multiple sentences are imposed and the record is silent as to the timing of those sentences occurred in Loper v. Shillinger, 772 P.2d 552 (Wyo.1989). We stated, at 558:
We decline to adopt the presumption advanced by petitioner. The sentencing judge has discretion to determine whether sentences shall be served consecutively or concurrently. Eaton v. State, 660 P.2d 803 (Wyo.1983). Here, the sentencing judge was aware that petitioner was on parole at the time he was sentenced. Petitioner was advised that his guilty plea could result in revocation of parole. The judge did not specify that the four concurrent sentences would run concurrently with the remainder of his original sentence in the event that parole was revoked.
¶7To presume concurrency in this situation ignores the logic of the United States Supreme Court as articulated in Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399, 116 A.L.R. 808 (1938):
Parole is intended to be a means of restoring offenders who are good social risks to society; to afford the unfortunate another opportunity by clemency-under guidance and control of the [parole] Board. Unless a parole violator can be required to serve some time in prison in addition to that imposed for an offense committed while on parole, he not only escapes punishment for the unexpired portion of his original sentence, but the disciplinary power of the Board will be practically nullified. 304 U.S. at 863, 58 S.Ct. at 874.
¶8We see no reason to adopt a presumption which would have the effect of rewarding
one who uses release on parole as an opportunity to commit further crimes.
¶9[¥23] Following Loper, we decided Pearson v. State, 866 P.2d 1297 (Wyo.1994). In Pearson, the defendant was on parole when he was convicted of a new crime. The sentencing court for the new crime was silent as to whether the new sentence should run consecutively to or concurrently with the parole sentence in the event parole was revoked. The defendant filed a motion to correct the sentence claiming that his sentences should run concurrently. His motion was denied and he appealed. Again this court held that "if no specification is made as to whether multiple sentences are concurrent or whether they are consecutive, the sentences will be deemed to be consecutive whether they are imposed in the same case, in different cases, or by different courts." Pearson, at 1299.
¶10[124] Thus it is clear, in the face of a sentencing court's silence regarding the timing of multiple sentences, Wyoming recognizes a presumption of consecutive sentences. Given this case's similarities to the above-mentioned cases, I cannot conclude that it was error for the district court to consider this presumption. The majority appears to distinguish Apodaca, Pearson, and Loper from the facts of this case in several ways. I am unable to agree, however, that these distinctions are sufficient to find traction for a different result.
¶11[125] The majority first determines that if this court believed the presumption of consecutive sentences should apply, we could have applied it without remanding to the district court. In Apodaca and Pearson, the trial courts denied motions by the defendants to change their sentences to run concurrently where the sentence itself was silent and the prison was treating their sentences as consecutive. In both cases, we upheld the denial by the trial courts. In Loper, although that defendant utilized a writ of certiorari to attain review by this court, we again reached a similar result. Moreover, it should be recognized that, as a result of this court's determination in Loper, Loper served consecutive sentences without further order from the trial court either confirming or overturning the decision rendered by the parole board.
¶12*1029[126] In this case, appellant originally came before this court by way of a writ of habeas corpus which was converted to a petition for writ of review. This case did not involve a direct appeal from action taken by the district court; therefore, we requested the district court make a ruling so we could, in fact, review the action. Accordingly, the matter was remanded for that purpose, and the trial court performed the necessary review. While the district court certainly was not required to apply the consecutive presumption, it is not error that it considered the presumption in making its determination given the wide discretion sentencing courts have in these matters.
¶13[127] The majority next concludes that the original sentencing court clearly did not intend for the consecutive presumption to apply because it expressly declined to make such a determination. The original sentencing court stated that it could not make the determination because the parole had not yet been revoked and that if it were revoked the parole board could make that determination. Obviously, the original sentencing court was incorrect in delegating its judicial function to the parole board. However, in Apodaca, Pearson, and Loper, in the face of a silent designation, prison officials essentially determined that the sentences should be served consecutively. This court affirmed those executive branch determinations by applying the consecutive presumption. Creating a vacuum by not performing a judicial function does not translate into intent of the judicial officer when the vacuum is then filled by others. The only difference between Apoda-ca, Pearson, Loper, and this case is that the original sentencing court specifically stated that the parole board would make that decision. While such a delegation was incorrect, appellant has received a full review and a judicial determination of his sentence by the district court, which is more than the defendants in Apodaca, Pearson, and Loper received.
¶14[128] The majority also discusses the prosecutor's failure on remand to focus his argument on factors that counsel in favor of consecutive sentences. The majority points to the prosecutor's attack on the parole board and references to the seriousness of the crime for which appellant was originally charged. I am not convinced that the prose-eutor's comments regarding the parole board have any relevance to whether the district court abused its discretion. Furthermore, the circumstances affecting sentencing were presented to the original sentencing court. The district court reviewed a transcript of those entire proceedings. After review, the district court stated that it believed that the facts established by that transcript indicated that the sentences should be consecutive.
¶15[129] Lastly, we must keep in mind that in this case the district court was simply asked to correct the sentence by designating whether the sentences were to be served concurrently or consecutively,. It was not asked to resentence the appellant or to make specific findings. Indeed, Wyoming law does not specifically require a trial court to render specific findings in sentencing matters. Nor does Wyoming law require a specific finding of aggravating circumstances in order to impose consecutive sentences as is suggested by the majority's reference to the Sentencing Guide for State Trial Judges in 113. Rather, we have stated, "separate penalties will ordinarily be exacted upon convictions for distinct offenses." Tilley v. State, 912 P.2d 1140, 1142 (Wyo.1996) (quoting Kennedy v. State, 595 P.2d 577, 577 (Wyo.1979)). I do agree with the majority that it is comforting to have basic findings made by a trial court when we set about to review the trial court's conclusion with an abuse of discretion standard. However, the absence of these specific findings does not definitively indicate an abuse of discretion.
¶16[130] Thus, I would find that the district court simply applied Wyoming law after a review of the trial and sentencing transcript. The district court could reasonably conclude as it did and did so without acting arbitrarily or capriciously. I would hold, therefore, that the actions of the district court were correct, and no abuse of discretion occurred. To do otherwise results in the unnecessary erosion of well-established and well-reasoned Wyoming case authority.