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.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
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
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?
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.
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
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
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.
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 ...