RICHARD J. REDDING, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff)
from the District Court of Converse County. The Honorable
John C. Brooks, Judge.
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.
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.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
[¶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
[¶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
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
[¶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
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.
[¶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
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.
United States v. Broce
[¶17] Our first task in considering the
waiver question is to determine the rule that
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 ...