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Redding v. State

Supreme Court of Wyoming

April 1, 2016

RICHARD J. REDDING, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff)

Page 137

          Appeal from the District Court of Converse County. The Honorable John C. Brooks, Judge.

         For Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; and Patricia L. Bennett, Sr. Assistant Appellate Counsel. Argument by Ms. Bennett.

         For Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; and Kelly M. Shaw, Assistant Attorney General. Argument by Ms. Shaw.

         Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.


Page 138

          HILL, Justice.

          [¶1] Richard Redding was charged with felony interference with a peace officer after having pled guilty to a misdemeanor charge arising out of the same events. The district court denied Mr. Redding's motion to dismiss the felony charge on double jeopardy grounds, and Mr. Redding thereafter entered an unconditional plea of no contest to a reduced charge of misdemeanor interference. On appeal, Mr. Redding contends his second misdemeanor conviction violated the double jeopardy provisions of the Wyoming and United States constitutions. We affirm.


          [¶2] Mr. Redding presents a single issue for our review and states that issue as follows:

I. The prosecution of Mr. Redding for felony interference with a peace officer after Mr. Redding had plead[ed] guilty to misdemeanor interference with a peace officer violated the double jeopardy clauses of the United States and Wyoming constitutions.[1]

          [¶3] The State responds with a similarly stated issue and the following additional issue:

I. A defendant who pleads guilty or no contest waives all nonjurisdictional defenses to the charges against him. A defendant can preserve nonjurisdictional defenses for appeal only by entering a conditional guilty plea. Richard J. Redding unconditionally pleaded no contest to the charge of interference with a peace officer. Is the defense of double jeopardy a nonjurisdictional defense that Redding waived when he unconditionally pleaded no contest?


          [¶4] On the evening of December 26, 2014, Mr. Redding was intoxicated and arguing with his wife. In an effort to calm himself and prevent the dispute with his wife from escalating, he called law enforcement. Officers Ableman and Coates of the Douglas, Wyoming Police Department responded to the call. Mr. Redding told the officers his wife had been yelling at him and causing problems, and he asked that the officers remove her from the home. When Officer Ableman told Mr. Redding the officers could

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not make his wife leave the home, Mr. Redding became angry and argumentative. Officer Ableman advised Mr. Redding again that they had no grounds to remove anyone from the home and told him that he and his wife needed to leave each other alone, stay away from each other, and try to be civil, especially in front of their children.

          [¶5] The officers left the home and were standing in front of the home when Mr. Redding came outside and started yelling profanities at them. The officers told Mr. Redding to stop yelling profanities and go back inside. Mr. Redding continued yelling profanities, and the officers again told him to stop yelling the profanities outside. When Mr. Redding started yelling a third time, the officers approached him and told him he was under arrest. Mr. Redding held the gate latch down so the officers could not open the gate, and Officer Ableman jumped the fence. Mr. Redding then ran back into his home.

          [¶6] Inside the home, Mr. Redding got behind his wife and told her not to let the officers take him to jail. When officers approached Mr. Redding, Officer Coates grabbed Mr. Redding's left arm and told him to put his hands behind his back. Mr. Redding refused, and Officer Ableman then reached for Mr. Redding's right arm, telling him to place his hands behind his back. Mr. Redding again refused, and the officers had to wrestle him for a few minutes before they were able to gain control of him and place him under arrest. At this point, the officers removed Mr. Redding from the home without first handcuffing him because his right hand was wrapped and he had told officers it was broken.

          [¶7] Once outside, the officers walked Mr. Redding away from the home. When they reached the gate, Mr. Redding stated, " I'm not going," and he tried to grab the gate. Officer Ableman restrained Mr. Redding's arm so he could not grab the gate, and Mr. Redding jerked his arm, elbowing Officer Ableman in the jaw. Officer Ableman handcuffed Mr. Redding's left arm to a belt loop on the back of his jeans, and the officers then transported him to county jail.

          [¶8] The arresting officers issued Mr. Redding two citations, one for misdemeanor breach of peace and one for misdemeanor interference with a peace officer. On December 29, 2014, Mr. Redding appeared in circuit court and pled guilty to both charges. The circuit court accepted the guilty pleas and sentenced Mr. Redding to a three-day jail sentence for the breach of peace conviction, with credit for three days served, and to a thirty-day sentence for the interference conviction, with credit for three days served and the remainder suspended on condition of a one-year unsupervised probation.

          [¶9] Two days later, on December 31, 2014, the State filed an information charging Mr. Redding with felony interference with a peace officer in violation of Wyo. Stat. Ann. § 6-5-204(b). The information alleged that Mr. Redding intentionally and knowingly caused bodily injury to a peace officer engaged in his official duties by " elbowing Douglas Police Officer Michael Ableman on the right side of his chin while Officer Ableman was attempting to arrest the defendant for Breach of the Peace." Attached to the information was a probable cause affidavit that described the events that occurred both inside and outside the Redding home on December 26, 2014.

          [¶10] On January 15, 2015, the circuit court issued an order binding Mr. Redding over to district court on the felony interference charge, and on February 5, 2015, Mr. Redding filed a motion to dismiss the felony charge, claiming it violated the double jeopardy protections of the Fifth Amendment to the United States Constitution. On March 6, 2015, the district court issued an order denying Mr. Redding's motion to dismiss. The court reasoned:

The factual scenario involved in this case was multifold. First, there was a confrontation outside the residence involving both officers. Then there was a scuffle indoors involving both officers. Finally, there was a second incident outdoors when the Defendant elbowed officer Ableman. The resisting arrest occurred up to the time the Defendant was restrained in the house. He was clearly under arrest after the officers removed him from the residence. It was then that the elbowing action occurred, but only against officer Ableman.

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Thus, like Pope [ v. State, 2002 WY 9, 38 P.3d 1069 (Wyo. 2002),] there was a separate act by the Defendant against only one policeman. There must be proof of a separate fact, that being bodily injury, to establish an element separate from the misdemeanor. That element was not established or pled guilty to in Circuit Court.
Thus the Defendant is not placed in double jeopardy by virtue of the felony charge. The Defendant's motion is denied.

          [¶11] On July 6, 2015, Mr. Redding entered an unconditional no contest plea to a reduced charge of misdemeanor interference. Defense counsel informed the district court that because of the double jeopardy question, the parties had agreed on a no contest plea and the prosecutor had elected to lay the factual basis for the plea. The prosecutor agreed with defense counsel's representation and then outlined the factual basis for Mr. Redding's plea.

          [¶12] The district court accepted Mr. Redding's no contest plea to the charge of misdemeanor interference and sentenced him to a term of six months in jail suspended in favor of one year of supervised probation, to be served concurrently with the probation Mr. Redding was already serving. On July 10, 2015, the court issued its Judgment, Sentence and Order, and Mr. Redding thereafter timely filed his appeal to this Court.


          [¶13] This Court " reviews de novo the question of whether a defendant's constitutional protection against double jeopardy has been violated." Sweets v. State, 2013 WY 98, ¶ 19, 307 P.3d 860, 867 (Wyo. 2013) (quoting James v. State, 2012 WY 35, ¶ 9, 271 P.3d 1016, 1018 (Wyo. 2012)). The State's assertion that Mr. Redding's entry of an unconditional no contest plea waived his double jeopardy defense also presents a question of law that we review de novo. See Henry v. State, 2015 WY 156, ¶ 13, 362 P.3d 785, 789 (Wyo. 2015) (reviewing de novo the question of whether defendant waived appeal of firearms advisement by entering into plea agreement).


         I. Waiver of Double Jeopardy Defense

          [¶14] " A guilty plea waives all non-jurisdictional defenses." Bowlsby v. State, 2013 WY 72, ¶ 5, 302 P.3d 913 at 915 (Wyo. 2013). The effect of a no contest plea is the same. Hagen v. State, 2014 WY 141, ¶ 9, 336 P.3d 1219, 1222 (Wyo. 2014) (" A nolo contendere plea waives all issues but those related to jurisdiction and voluntariness of the plea." ). We have held, however, that because a double jeopardy claim implicates the government's power to bring a defendant into court on a charge, the issue of double jeopardy is jurisdictional and may be raised at any time. Snow v. State, 2009 WY 117, ¶ 13, 216 P.3d 505, 509 (Wyo. 2009) (citing Taylor v. State, 2003 WY 97, ¶ 11, 74 P.3d 1236, 1239 (Wyo. 2003)).

          [¶15] The State acknowledges our holdings concerning the jurisdictional nature of a double jeopardy claim. It asserts, however, that in United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), the Supreme Court clarified that not all double jeopardy claims are jurisdictional and in certain circumstances a guilty plea will waive a double jeopardy claim. It contends those circumstances exist in this case and that under the Broce analysis, Mr. Redding's double jeopardy claim is non-jurisdictional and was waived when he entered his no contest plea.

          [¶16] We have recognized that a distinction exists between jurisdictional and nonjurisdictional double jeopardy claims, but we have not previously addressed the distinction. See Bowlsby, ¶ 5, 302 P.3d at 915 n.1 (noting possible jurisdictional distinction but not addressing it because State did not raise waiver question); Snow, ¶ 13, 216 P.3d at 509 n.6 (same); Longstreth v. State, 890 P.2d 551, 552-53 (Wyo. 1995) ( Broce ruling raised by defendant but not addressed). Because the State has raised the waiver question in response to Mr. Redding's appeal, we take this opportunity to address the distinction.

         A. United States v. Broce

          [¶17] Our first task in considering the waiver question is to determine the rule that

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emerged from the Supreme Court's holding in Broce. This requires a close examination of the facts and the Court's reasoning in that decision.

          [¶18] Broce arose out of indictments relating to numerous allegations of bid rigging on highway projects in Kansas. Broce, 488 U.S. at 565-67, 109 S.Ct. at 760-61. The first defendants indicted in the bid rigging schemes were Ray Broce and his incorporated construction company. Id. The Supreme Court described the indictments and ensuing guilty pleas:

Respondents, Ray C. Broce and Broce Construction Co., Inc., bid for work on highway projects in Kansas. Two of the contracts awarded to them became the subject of separate indictments charging concerted acts to rig bids and suppress competition in violation of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1. * * * The first indictment charged respondents with entering into an agreement, sometime in or about April 1978, to rig bids on a particular highway project. The second charged respondents with entering into a similar agreement, sometime in or about July 1979, to rig bids on a different project. Both indictments were discussed during plea negotiations, and respondents acknowledged in plea agreements that they were subject to separate sentences on each conspiracy charged.
Respondents pleaded guilty to the two indictments in a single proceeding. The District Court conducted a hearing fully in accord with Rule 11 of the Federal Rules of Criminal Procedure and found that the pleas were free and voluntary, made with an understanding of their consequences and of the nature of the charges. Respondents had counsel at all stages and there are no allegations that counsel was ineffective. Convictions were entered on the pleas. The District Court then sentenced Broce to two years' imprisonment on each count, the terms to run concurrently, and to a fine of $50,000 on each count. Broce was also sentenced for mail fraud under 18 U.S.C. § 1341, a conviction ...

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