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Protz v. State

Supreme Court of Wyoming

March 1, 2019

ANDREW FRANKLIN PROTZ, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Sublette County The Honorable Marvin L. Tyler, Judge

          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.

          BOOMGAARDEN, JUSTICE.

         [¶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.

         ISSUE

         [¶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?

         FACTS

         [¶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.

         DISCUSSION

         [¶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." Messe ...


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