Protz v. State, S-18-0097
Decision Date | 01 March 2019 |
Docket Number | S-18-0121,S-18-0097 |
Citation | 435 P.3d 394 |
Parties | Andrew Franklin PROTZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
Court | Wyoming Supreme Court |
Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Desiree Wilson, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.
Representing Appellee: Peter K. Michael, Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Benjamin E. Fischer, Assistant Attorney General. Argument by Mr. Fischer.
Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
[¶1] Pursuant to a plea agreement, Andrew Franklin Protz pled guilty to the crime of driving while under the influence (DWUI)—fourth offense in ten years. On appeal, Mr. Protz contends the charging document (Information) failed to state a felony offense because it did not allege three prior offenses resulting in convictions within the ten-year lookback period as required by Wyo. Stat. Ann. § 31-5-233(e) (LexisNexis 2017). We conclude that the Information plainly charged Mr. Protz with a fourth offense felony DWUI, thereby invoking the district court’s subject matter jurisdiction, and that Mr. Protz waived his challenge to the sufficiency of the Information when he entered his unconditional guilty plea. We therefore affirm his conviction.
[¶2] Mr. Protz asks us to review one issue:
Whether the Information failed to state the offense of fourth driving while under the influence within ten years when it did not allege three prior offenses within ten years?
[¶3] On May 23, 2017, Trooper Merritt of the Wyoming Highway Patrol arrested Mr. Protz for DWUI. He transported Mr. Protz to the Sublette County Detention Center and administered a breath test. Mr. Protz had a blood alcohol content of 0.20%. The Information charged Mr. Protz with DWUI, his fourth offense in ten years, in violation of Wyo. Stat. Ann. § 31-5-233(b)(ii) and/or Wyo. Stat. Ann. § 31-5-233(b)(iii)(A) ("felony DWUI charge"). The circuit court appointed a public defender to represent Mr. Protz, he waived his right to a preliminary hearing, and the case was bound over to district court. Mr. Protz pled not guilty at his arraignment.
[¶4] Mr. Protz reached a plea agreement with the State on December 21, 2017. He agreed to plead guilty to the felony DWUI charge and to waive several of his rights, including his rights to file post-conviction motions and an appeal, in exchange for the State recommending favorable sentencing terms. At the change of plea hearing, the district court accepted Mr. Protz’s unconditional guilty plea and sentenced him in accordance with the plea agreement: four to six years imprisonment, with credit for time served; suspended pending completion of a nine-month split sentence in the Sublette County Detention Center, and five years of supervised probation.
[¶5] Following sentencing, and notwithstanding his waiver of rights, Mr. Protz filed a pro se motion to dismiss his felony conviction claiming he did not have three prior DWUI offenses that fell within the statutory ten-year lookback period. The district court denied his motion. Mr. Protz timely appealed the judgment and sentence and the denial of his motion to dismiss.
[¶6] The State argues that Mr. Protz waived his right to appeal under the terms of his plea agreement and we should enforce that agreement. Mr. Protz argues that the alleged failure of the Information to state the felony offense of a fourth DWUI within ten years is a jurisdictional issue; thus, he did not waive his claim and it would be a miscarriage of justice to convict and sentence him based on his guilty plea. Because we conclude Mr. Protz’s claims are nonjurisdictional, he waived his right to challenge the sufficiency of the information when he entered his unconditional guilty plea.
[¶7] We begin by considering Mr. Protz’s assertion that he could only be convicted of a misdemeanor, not a felony, as this assertion calls the district court’s jurisdiction into question. "[S]ubject matter jurisdiction over the offense charged is fundamental and indispensable to a prosecution." Messer v. State , 2004 WY 98, ¶ 13, 96 P.3d 12, 17 (Wyo. 2004) (citation omitted).
District courts in Wyoming have jurisdiction over all criminal cases except those for which other provision is made. Circuit courts have original jurisdiction in all misdemeanor criminal cases and are required to conduct preliminary hearings for all persons charged with a felony.
Id. (citations omitted); see Wyo. Const. art. 5, § 10 ; Wyo. Stat. Ann. §§ 5-9-129, -132 (LexisNexis 2017). Whether the State had the power to bring Mr. Protz into district, as opposed to circuit, court is a question of law we review de novo. Jones v. State , 2011 WY 114, ¶ 7, 256 P.3d 527, 531 (Wyo. 2011) (citation omitted). For this purpose, "[a]n information is sufficient if it is in the words of the statute," and it only has to set forth " ‘ultimate facts,’ as opposed to ‘matters of evidence,’ the latter phrase meaning ‘particulars as to manner or means, place or circumstance.’ " Id. (citations omitted).
[¶8] The State accused Mr. Protz of violating Wyo. Stat. Ann. § 31-5-233(b), and asserted he should be punished in accordance with subsection (e). Those provisions provide:
Wyo. Stat. Ann. § 31-5-233(b), (e) (emphasis added). The Information specifically alleged:
(Emphasis in original.)
[¶9] By stating the ultimate facts and using the words of the statute, to include the "Fourth Offense in Ten Years" felony enhancement, this Information clearly invoked district court jurisdiction. See Wyo. Stat. Ann. § 31-5-233 ; Messer , ¶ 16, 96 P.3d at 17 ( ).
[¶10] The ultimate issue—whether Mr. Protz waived his appellate claim by pleading guilty to the crime charged—is also a question of law we review de novo. Popkin v. State , 2018 WY 121, ¶ 11, 429 P.3d 53, 55 (Wyo. 2018) (citation omitted). "A criminal defendant, by pleading guilty, admits all of the essential elements of the crime charged ...." Ochoa v. State , 848 P.2d 1359, 1361 (Wyo. 1993) (citations omitted). "The only claims not waived by an unconditional guilty plea are those that address the jurisdiction of the court or the voluntariness of the plea." Kitzke v. State , 2002 WY 147, ¶ 8, 55 P.3d 696, 699 (Wyo. 2002) (citation omitted). Because Mr. Protz does not challenge the voluntariness of his guilty plea, we consider only whether his appeal raises a jurisdictional issue. Jurisdictional issues involve "the very power of the State to bring the defendant into court to answer the charge brought against him[,]" and include the "failure of the indictment or information to state an offense ." Davila v. State , 831 P.2d 204, 205 (Wyo. 1992) (emphasis added) (citations omitted).
[¶11] In addition to the general allegations stated above, the Information further alleged that Mr. Protz had three prior DWUI convictions on: (1) August 2, 2007, in Willits, California; (2) July 29, 2011, in Richmond, California; and (3) April 1, 2015, in Sweetwater County, Wyoming. The Information incorporated by reference Trooper Merritt’s affidavit,1 which additionally listed Mr. Protz’s prior DWUI arrest dates and some corresponding disposition dates:
Protz has prior D[W]UI arrests:Arrest Date 02/08/07, Disposition Date 08/02/07Arrest Date 02/23/11, Disposition Date 07/29/11Arrest Date 06/01/11[, No disposition date listed]Arrest Date 06/15/14[, No disposition date listed]
[¶12] Mr. Protz nevertheless claims the Information is jurisdictionally defective...
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Dahl v. State
...State , 2016 WY 41, ¶ 13, 371 P.3d 136, 140 (Wyo. 2016) ) (other citations omitted). See also, Protz v. State, 2019 WY 24, ¶ 10, 435 P.3d 394, 397 (Wyo. 2019). [¶10] A no contest or nolo contendere plea has the same effect as a guilty plea. Ochoa v. State, 848 P.2d 1359, 1361 (Wyo. 1993) (c......