Protz v. State
Protz v. State
Opinion of the Court
[¶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
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
[¶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 *396nine-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." Messer v. State ,
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.
[¶8] The State accused Mr. Protz of violating
(b) No person shall drive or have actual physical control of any vehicle within this state if the person:
....
(ii) Has an alcohol concentration of eight one-hundredths of one percent (0.08%) or more, as measured within two (2) hours after the time of driving or being in actual physical control of the vehicle following a lawful arrest resulting from a valid traffic stop; or
(iii) To a degree which renders him incapable of safely driving:
(A) Is under the influence of alcohol[.]
....
(e) ... Except as otherwise provided in this subsection or subsection (h) or (m) of this section, a person convicted of violating this section is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both. ... On a fourth offense resulting in a conviction or subsequent conviction within ten (10) years for a violation of this section or other law prohibiting driving while under the influence, he shall be guilty of a felony and fined not more than ten thousand dollars ($10,000.00), punished by imprisonment for not more than seven (7) years, or both.
1. On or about May 23, 2017,
2. in Sublette County, Wyoming,
3. the Defendant, ANDREW FRANKLIN PROTZ,
4. drove or had actual physical control of a vehicle, *3975. with an alcohol concentration of eight one-hundredths of one percent (0.08%) or more, as measured within two (2) hours after the time of driving or being in actual physical control of the vehicle following a lawful arrest resulting from a valid traffic stop, and/or
6. while under the influence of alcohol,
7. to a degree which rendered the Defendant incapable of safely driving, in violation of WYO. STAT. ANN. § 31-5-233(b)(ii), AND/OR WYO. STAT. ANN. § 31-5-233(b)(iii)(A), Driving While Under the Influence - Fourth Offense in Ten Years , a felony, punishable by imprisonment for not more than seven (7) years, a fine of not more than ten thousand dollars ($10,000.00), or both, as provided by WYO. STAT. ANN. § 31-5-233(e), contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming.
(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
[¶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 ,
[¶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,
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 because the State relied on his prior conviction dates instead of offense dates to support its fourth offense felony DWUI charge.
[¶13] Without the benefit of our Rhoads opinion when he filed his appeal, Mr. Protz focused his briefing on refuting the State's interpretation of
[¶14] The plain language of
[¶15] The arrest, disposition, and conviction dates set forth in the Information are facts that placed Mr. Protz on notice that the State sought to prove he was guilty of DWUI, subject to felony sentence enhancement.
*399Messer , ¶ 22,
CONCLUSION
[¶16] The Information charged Mr. Protz with DWUI subject to felony sentence enhancement, thus invoking the district court's subject matter jurisdiction. By entering an unconditional guilty plea, Mr. Protz waived his right to challenge whether the State could prove he had three offenses resulting in convictions within the ten-year look back period as
See e.g. , Schuler v. State ,
Mr. Protz does not acknowledge the prior arrest and disposition dates incorporated into the Information through Trooper Merritt's affidavit. Supra at ¶ 11.
See also Jaramillo v. City of Green River ,
Mr. Protz argues that his pro se, post-conviction motion to dismiss was denied in error "[f]or the same reasons the Information failed to state an offense[.]" He further argues that his appeal of the denial of his motion to dismiss is unaffected by any waiver of claims through the entry of his guilty plea and should be decided on the merits. Because the Information did not fail to state an offense, we summarily affirm the district court's denial of Mr. Protz's motion to dismiss, without ruling on the legal validity of his post-conviction motion, see W.R.Cr.P. 34, or whether he waived his right to file the motion under the terms of his plea agreement.
Reference
- Full Case Name
- Andrew Franklin PROTZ, (Defendant) v. The STATE of Wyoming, (Plaintiff).
- Cited By
- 1 case
- Status
- Published