                IN THE SUPREME COURT, STATE OF WYOMING

                                         2016 WY 41

                                                            OCTOBER TERM, A.D. 2015

                                                                      April 1, 2016

RICHARD J. REDDING,

Appellant
(Defendant),

v.                                                   S-15-0205

THE STATE OF WYOMING,

Appellee
(Plaintiff).

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

Representing 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.

Representing 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.




NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
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.

                                                ISSUE

[¶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?

                                                FACTS

[¶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
1
  Although Mr. Redding invokes both the Wyoming and the United States constitutions in making his
double jeopardy claim, he provides no independent state constitutional analysis, and we have held that our
state protections are equivalent to the federal protections. Bowlsby v. State, 2013 WY 72, ¶ 8, 302 P.3d
913, 916 (Wyo. 2013). For all intents and purposes then, we are presented with a double jeopardy claim
that is governed by federal principles.


                                                     1
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 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


                                             2
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. 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



                                             3
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.

                               STANDARD OF REVIEW

[¶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).

                                      DISCUSSION

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 non-
jurisdictional 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



                                              4
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
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 which is not relevant here.
             The corporation was fined $750,000 on each count, for a total


                                            5
              of $1,500,000. Neither respondent having appealed, the
              judgments became final.

Broce, 488 U.S. at 565-66, 109 S.Ct. at 760 (citations to record omitted).

[¶19] On the same day the Broce defendants entered their guilty pleas, an indictment
was issued against Robert Beachner and his construction company, alleging the same
type of bid-rigging conspiracy on a single Kansas highway project. Broce, 488 U.S. at
566, 109 S.Ct. at 760-61. The Beachner defendants did not plead guilty and instead went
to trial and were acquitted. Id., 488 U.S. at 566, 109 S.Ct. at 761. Following the
Beachner aquittal, a second indictment was returned against the Beachner defendants
charging them with bid-rigging conspiracies on three Kansas highway projects not
covered in the first indictment. Id. The Beachner defendants moved to dismiss the
indictment on double jeopardy grounds, arguing that the bid-rigging arrangements were
merely smaller parts of one overarching conspiracy existing among Kansas highway
contractors and its acquittal on the first charge precluded the subsequent charges. Id.,
488 U.S. at 566-67, 109 S.Ct. at 761. The district court agreed and dismissed the
indictment, and that dismissal was upheld on appeal. Id.

[¶20] The Supreme Court described the response of the Broce defendants to the
dismissal of the second Beachner indictment:

              One might surmise that the Broce defendants watched the
              Beachner proceedings with awe, if not envy. What is certain
              is that the Broce defendants sought to profit from Beachner’s
              success. After the District Court issued its decision to dismiss
              in Beachner II, the Broce respondents filed a motion pursuant
              to Federal Rule of Criminal Procedure 35(a) to vacate their
              own sentences on the Sherman Act charge contained in the
              second indictment. Relying on Beachner II, they argued that
              the bid-rigging schemes alleged in their indictments were but
              a single conspiracy.

Broce, 488 U.S. at 567, 109 S.Ct. at 761.

[¶21] The district court initially denied the Broce defendants’ motion to vacate their
sentences on the second indictment, but on remand from the Tenth Circuit Court of
Appeals, it granted the motion. Broce, 488 U.S. at 567-69, 109 S.Ct. at 761-62. The
Supreme Court reversed. Id., 488 U.S. at 576, 109 S.Ct. at 766. In so ruling, the
Supreme Court began its analysis with the following statement of the general rule
concerning the effect of a guilty plea:




                                              6
             A plea of guilty and the ensuing conviction comprehend all of
             the factual and legal elements necessary to sustain a binding,
             final judgment of guilt and a lawful sentence. Accordingly,
             when the judgment of conviction upon a guilty plea has
             become final and the offender seeks to reopen the proceeding,
             the inquiry is ordinarily confined to whether the underlying
             plea was both counseled and voluntary. If the answer is in the
             affirmative then the conviction and the plea, as a general rule,
             foreclose the collateral attack. There are exceptions where on
             the face of the record the court had no power to enter the
             conviction or impose the sentence.

Broce, 488 U.S. at 569, 109 S.Ct. at 762 (emphasis added).

[¶22] The exceptions to which the Court referred were drawn from the Court’s prior
decisions, and the Court explained those exceptions and their application as follows:

             An exception to the rule barring collateral attack on a guilty
             plea was established by our decisions in Blackledge v. Perry,
             417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and
             Menna v. New York, supra, but it has no application to the
             case at bar.

             The respondent in Blackledge had been charged in North
             Carolina with the state-law misdemeanor of assault with a
             deadly weapon. Pursuant to state procedures, he was tried in
             the county District Court without a jury, but was permitted,
             once he was convicted, to appeal to the county Superior Court
             and obtain a trial de novo. After the defendant filed an appeal,
             the prosecutor obtained an indictment charging felony assault
             with a deadly weapon with intent to kill and inflict serious
             bodily injury. The defendant pleaded guilty. We held that the
             potential for prosecutorial vindictiveness against those who
             seek to exercise their right to appeal raised sufficiently
             serious due process concerns to require a rule forbidding the
             State to bring more serious charges against defendants in that
             position. The plea of guilty did not foreclose a subsequent
             challenge because in Blackledge, unlike in Brady and Tollett,
             the defendant’s right was “the right not to be haled into court
             at all upon the felony charge. The very initiation of
             proceedings against him ... thus operated to deny him due
             process of law.” 417 U.S., at 30-31, 94 S.Ct., at 2104.



                                             7
             The petitioner in Menna had refused, after a grant of
             immunity, to obey a court order to testify before a grand jury.
             He was adjudicated in contempt of court and sentenced to a
             term in civil jail. After he was released, he was indicted for
             the same refusal to answer the questions. He pleaded guilty
             and was sentenced, but then appealed on double jeopardy
             grounds. The New York Court of Appeals concluded that
             Menna had waived his double jeopardy claim by pleading
             guilty. We reversed, citing Blackledge for the proposition that
             “[w]here the State is precluded by the United States
             Constitution from haling a defendant into court on a charge,
             federal law requires that a conviction on that charge be set
             aside even if the conviction was entered pursuant to a
             counseled plea of guilty.” 423 U.S., at 62, 96 S.Ct., at 242.
             We added, however, an important qualification:
                    “We do not hold that a double jeopardy claim may
                    never be waived. We simply hold that a plea of guilty
                    to a charge does not waive a claim that-judged on its
                    face-the charge is one which the State may not
                    constitutionally prosecute.” Id., at 63, n.2, 96 S.Ct., at
                    242, n. 2 (emphasis added).

             In neither Blackledge nor Menna did the defendants seek
             further proceedings at which to expand the record with new
             evidence. In those cases, the determination that the second
             indictment could not go forward should have been made by
             the presiding judge at the time the plea was entered on the
             basis of the existing record. Both Blackledge and Menna
             could be (and ultimately were) resolved without any need to
             venture beyond that record. In Blackledge, the concessions
             implicit in the defendant’s guilty plea were simply irrelevant,
             because the constitutional infirmity in the proceedings lay in
             the State’s power to bring any indictment at all. In Menna, the
             indictment was facially duplicative of the earlier offense of
             which the defendant had been convicted and sentenced so that
             the admissions made by Menna’s guilty plea could not
             conceivably be construed to extend beyond a redundant
             confession to the earlier offense.

Broce, 488 U.S. at 574-76, 109 S.Ct. at 765-66 (emphasis added).




                                             8
[¶23] Applying this analysis to the case before it, the Supreme Court found that the
Broce indictments facially described separate conspiracies and that the record as it
existed when the defendants entered their guilty pleas contained no evidence or
information to contradict those indictments. Broce, 488 U.S. at 576, 109 S.Ct. at 766.
This meant the double jeopardy violation was not apparent on the face of the indictments
or in the existing record, and there was, in contrast to the Menna claim, no facial basis on
which the court that accepted the guilty pleas should have made a determination that the
second indictment could not go forward. Id., 488 U.S. at 575-76, 109 S.Ct. at 765-66.
For this reason, the Court concluded the defendants had waived their double jeopardy
claim with the entry of their guilty pleas. Id., 488 U.S. at 576, 109 S.Ct. at 766.

[¶24] We interpret Broce as essentially holding that a double jeopardy claim is
jurisdictional and will not be deemed waived if the court accepting the defendant’s guilty
plea had before it a record sufficient to demonstrate that the guilty plea would result in a
double jeopardy violation. What this means for our review on appeal was put into
practical terms by the Wisconsin Supreme Court, and we agree with that Court’s
approach:

              The Supreme Court in Broce did not conclude that a guilty
              plea waives the right to raise a double jeopardy challenge.
              Rather, the Court held that a guilty plea waives the right to a
              fact-finding hearing on a double jeopardy challenge. Broce,
              488 U.S. at 573, 109 S.Ct. 757. Thus, “a plea of guilty to a
              charge does not waive a claim that-judged on its face-the
              charge is one which the State may not constitutionally
              prosecute.” Id. at 575, 109 S.Ct. 757 (quoting Menna, 423
              U.S. at 63 n. 2, 96 S.Ct. 241). What this means is that a court
              will consider the merits of a defendant’s double jeopardy
              challenge if it can be resolved on the record as it existed at
              the time the defendant pled.

State v. Kelty, 2006 WI 101, ¶ 38, 716 N.W.2d 886, 897 (Wis. 2006) (footnote omitted)
(emphasis added).

[¶25] Our reading of Broce is not the interpretation urged by the State. The State
contends that per Broce, an unconditional guilty plea waives a defendant’s double
jeopardy claim unless the double jeopardy violation is apparent on the face of the
charging documents. In the State’s view, a defendant must prove a double jeopardy
violation based solely on the charging documents and if that cannot be done, the double
jeopardy claim is waived by the defendant’s guilty plea. Emphasizing this view, the State
argued in its briefing (citation omitted):




                                              9
                The United States Supreme Court does not require the State
                to present detailed charges in its indictments. Redding could
                have demanded more detail from the State and preserved his
                right to assert double jeopardy as a defense by pleading
                conditionally or by declining to plead and proceeding to trial.

[¶26] We reject the State’s view that a defendant is confined to the charging documents
in proving that a double jeopardy violation was apparent when he entered his guilty plea.
The Supreme Court itself in Broce announced no such rule and in barring the defendants’
double jeopardy claim observed that the defendants’ claim failed because they could not
“prove their claim by relying on [the] indictments and the existing record.” Broce, 488
U.S. at 576, 109 S.Ct. at 766 (emphasis added). Under the Broce analysis it was not the
existing record that was off limits in determining the double jeopardy claim. Rather, it
was the notion of venturing beyond that record and allowing an evidentiary hearing to
prove the claim that troubled the Court:

                Respondents had the opportunity, instead of entering their
                guilty pleas, to challenge the theory of the indictments and to
                attempt to show the existence of only one conspiracy in a
                trial-type proceeding. They chose not to, and hence
                relinquished that entitlement.

Broce, 488 U.S. at 571, 109 S.Ct. at 763.

[¶27] We are satisfied that the rule that emerged from Broce was much as the Wisconsin
Supreme Court summarized it: A reviewing court may consider the merits of a
defendant’s double jeopardy challenge following entry of an unconditional guilty or no
contest plea if the claim can be resolved on the basis of the charging documents and/or
the record as it existed at the time the defendant pled.2 If resolution of the claim requires
evidence outside the existing record, the claim shall be deemed waived by the guilty or
no contest plea.3
2
  We also agree with the Wisconsin court’s observation that “[b]ecause pleas may be entered at different
stages of a criminal proceeding, ‘the record’ as it existed at the time of the plea will vary from case to
case.” Kelty, ¶ 38, 716 N.W.2d at 897 n.15.
3
  This approach finds support in the federal courts of appeal. The circuit courts applying Broce to
determine whether a defendant’s double jeopardy claim survived his guilty plea have unanimously
approached the question as one requiring review of both the indictments and the record that existed at the
time of a defendant’s guilty plea, and they have excluded from consideration only the evidence outside
that record. See United States v. Adame-Hernandez, 763 F.3d 818, 829 (7th Cir. 2014) (defendant may
not seek further proceedings to expand record and double jeopardy violation must be apparent on the
basis of existing record when second plea was entered); Lemke v. Ryan, 719 F.3d 1093, 1097 (9th Cir.
2013) (double jeopardy claim reviewable where claim can be resolved without venturing beyond existing
record); United States v. Stefanidakis, 678 F.3d 96, 99-100 (1st Cir. 2012) (defendant may not in pursuing
double jeopardy claim revisit factual predicate of conviction or venture outside record); United States v.


                                                     10
B.      Adoption of the Broce Rule

[¶28] Our next task is to determine whether the Broce rule is the analysis we wish to
adopt in our jurisdiction for review of double jeopardy claims following entry of an
unconditional guilty or no contest plea. We take this step because, although Mr.
Redding’s double jeopardy claim is essentially a federal claim, Broce speaks to the
federal remedy available for a double jeopardy claim following a guilty plea, and we are
not necessarily limited to that remedy. As one state court explained in rejecting the
Broce analysis:

                The rule of relinquishment articulated in Broce is not
                constitutional in nature but is a procedural bar under Federal
                common law, which does not govern State procedural law.
                See Commonwealth v. LePage, 352 Mass. 403, 409, 226
                N.E.2d 200 (1967) (“Federal rules and cases ... do not control
                Massachusetts procedures, so long as there is no violation of
                applicable Federal constitutional principles”). See also
                Lefkowitz v. Newsome, 420 U.S. 283, 288–292, 95 S.Ct. 886,
                43 L.Ed.2d 196 (1975) (applying State law to determine
                whether guilty plea constituted waiver of constitutional
                claims). Where we have declared as a matter of State
                procedural common law that a guilty plea does not relinquish
                a defendant’s entitlement to challenge a conviction on double
                jeopardy grounds, see Commonwealth v. Clark, supra, a
                Federal rule of relinquishment has no consequence to
                collateral review of a guilty plea in a Massachusetts court and



Ehle, 640 F.3d 689, 693 (6th Cir. 2011) (no waiver of double jeopardy claim where violation apparent
from face of indictment and record existing when plea entered); United States v. Calhoun, 450 Fed. Appx.
74, 75-76 (2nd Cir. 2011) (defendant cannot complain of double jeopardy violation unless it is apparent
from face of indictment or record existing at time of plea); United States v. Bonilla, 579 F.3d 1233, 1241
(11th Cir. 2009) (court will look to the record that existed at time of guilty plea to determine double
jeopardy waiver); United States v. Brown, 155 F.3d 431, 434 (4th Cir. 1998) (court will look to
indictments and record evidence at time of plea to determine double jeopardy waiver); Walker v. United
States, 115 F.3d 603, 604 (8th Cir. 1997) (court will look to face of record to determine whether guilty
plea forecloses attack on conviction); United States v. Smith, 81 F.3d 1147, *1 (D.C. Cir. 1996)
(“[Defendant’s] double jeopardy claim fails because any such defense would require evidence outside the
record and, thus, was waived by his guilty plea.”); Thomas v. Kerby, 44 F.3d 884, 888 (10th Cir. 1995)
(double jeopardy claim not waived if apparent on face of indictment and/or record existing at time of
plea); United States v. Pollen, 978 F.2d 78, 84 (3rd Cir. 1992) (no double jeopardy waiver if violation
apparent from face of indictment or record); Taylor v. Whitley, 933 F.2d 325, 328 (5th Cir. 1991)
(Defendant “may succeed on his double jeopardy claim only if the violation is apparent on the face of the
indictment or record.”).


                                                     11
              may not override our declaration of a different procedural
              rule.

Commonwealth v. Negron, 967 N.E.2d 99, 102-03 (Mass. 2012); see also Kelty, ¶ 27, 716
N.W.2d at 894 (citing Lefkowitz v. Newsome, 420 U.S. 283, 288, 293, 95 S.Ct. 886, 43
L.Ed.2d 196 (1975)) (Because Broce explains the effect of guilty pleas in the federal
criminal justice system, it is not binding precedent on this court)); Danforth v. Minnesota,
552 U.S. 264, 288, 128 S.Ct. 1029, 1045-46, 169 L.Ed.2d 859 (2008)) (quoting American
Trucking Assns., Inc. v. Smith, 496 U.S. 167, 178-79, 110 S.Ct. 2323, 110 L.Ed.2d 148
(1990) (“[T]he remedy a state court chooses to provide its citizens for violations of the
Federal Constitution is primarily a question of state law. Federal law simply ‘sets certain
minimum requirements that States must meet but may exceed in providing appropriate
relief.’”).

[¶29] Although we are not bound by the Broce waiver analysis, it has generally been this
Court’s approach to treat United States Supreme Court interpretations as dispositive of
federal constitutional claims raised in our courts, unless we have an independent state
ground for ruling otherwise. Bear Cloud v. State, 2014 WY 113, ¶ 38, 334 P.3d 132, 144
(Wyo. 2014) (citing Nehring v. Russell, 582 P.2d 67, 74 (Wyo. 1978)). In this case, we
have no such basis to deviate from the federally prescribed remedy. See Sweets, ¶ 49,
307 P.3d at 875 (aligning our double jeopardy analysis with federal precedent); Bowlsby,
¶ 8, 302 P.3d at 916 (“We have held that the state and federal [double jeopardy]
provisions are equivalent.”). Additionally, we again agree with the Wisconsin Supreme
Court that the Broce analysis “properly balances the public’s interest in efficient judicial
administration with a defendant’s double jeopardy rights.” Kelty, ¶ 27, 716 N.W.2d at
894. As that court observed:

              * * * Broce ensures adequate protection for the double
              jeopardy rights of defendants. Defendants may present a
              double jeopardy challenge if the issue can be resolved on the
              record, as recognized in Broce. Only the class of double
              jeopardy defects that cannot be resolved on the record will
              escape substantive review. This result logically follows from
              the nature of a guilty plea. Where doubts about the presence
              of a double jeopardy violation exist, these doubts should be
              treated no differently than other factual and legal
              uncertainties, which are also resolved by a guilty plea. Just as
              a defendant does not know whether the state will be able to
              prove the factual predicates necessary to establish guilt
              beyond a reasonable doubt, a defendant does not know
              whether she will succeed on a double jeopardy claim that is
              heavily enmeshed with disputed and uncertain facts. In both
              situations, a plea should waive the defendant’s right to make


                                              12
              the state prove beyond a reasonable doubt the facts necessary
              to support guilt.

Kelty, ¶ 42, 716 N.W.2d at 899.

[¶30] For these reasons, we adopt Broce as the analysis to govern our review of double
jeopardy claims following a defendant’s entry of an unconditional guilty or no contest
plea.

C.     Application of the Broce Rule

[¶31] Having adopted the Broce rule, we turn to the State’s argument that application of
the rule requires a finding that Mr. Redding’s no contest plea resulted in a waiver of his
double jeopardy claim. We disagree.

[¶32] The State contends that Mr. Redding’s double jeopardy claim was waived because
his claim cannot be resolved without having an evidentiary hearing to resolve disputed
issues of fact. In so arguing, the State does not specify the fact issues that would require
an evidentiary hearing before reaching the merits of Mr. Redding’s double jeopardy
claim, and we are unable ourselves to identify any unresolved issues of fact. During the
plea hearing, defense counsel informed the district court that while the prosecutor would
be providing the factual basis for Mr. Redding’s no contest plea, Mr. Redding did not
deny the factual allegations against him. Defense counsel specifically agreed that when
the two officers were escorting Mr. Redding from his property, Mr. Redding grabbed the
gate and elbowed one of the officers. In asserting his double jeopardy claim on appeal,
Mr. Redding has not deviated from his admissions.

[¶33] This distinguishes this case from one like Kelty, the Wisconsin decision discussed
above. In that case, the defendant was charged with two counts of intentionally causing
great bodily harm to a child. Kelty, ¶ 5, 716 N.W.2d at 889. The criminal complaint
asserted the defendant struck a sixteen-month old baby in the head at least twice with two
different objects, and at the preliminary hearing, the child’s treating surgeon testified that
in his opinion, the injuries were caused by two separate blows with two different types of
weapons. Id. The defendant pled guilty to two counts of first degree reckless injury and
then appealed her conviction on double jeopardy grounds. Id., ¶¶ 10-11, 716 N.W.2d at
890. She contended she only committed and could be convicted of one offense,
reasoning:

              that she struck the baby in such rapid succession with
              different parts of the same instrument that the acts were
              identical in fact because she did not have “sufficient time for
              reflection between the acts to re-commit [herself] to the
              criminal conduct.”


                                               13
Kelty, ¶ 49, 716 N.W.2d at 900.

[¶34] The Wisconsin court concluded that the defendant had waived her double jeopardy
claim. Kelty, ¶ 51, 716 N.W.2d at 901. The court reasoned:

             The record contains evidence to support the charges, but we
             cannot determine with certainty from the record exactly how
             Kelty inflicted the baby’s injuries. In other words, we cannot
             determine with certainty whether Kelty’s two convictions for
             first-degree reckless injury were multiplicitous. All we know
             is that the State had the power to prosecute both counts on the
             evidence available; the defendant pled guilty to both counts
             after hearing the charges and the evidence, and after
             conferring in detail with her attorney; and the court, after a
             very thorough plea colloquy, had the power to convict and
             sentence the defendant on both counts. Without additional
             fact-finding, we could not learn more than we know now.
             Accordingly, we conclude that Kelty’s guilty plea
             relinquished her opportunity to have a court determine the
             merits of her multiplicity challenge. See Broce, 488 U.S. at
             575-76, 109 S.Ct. 757.

Kelty, ¶ 51, 716 N.W.2d at 901.

[¶35] In contrast to Kelty, we know with certainty what Mr. Redding did on the evening
in question, and in asserting his double jeopardy claim, Mr. Redding does not deny the
conduct alleged. Under Broce, we look to the record as it existed when the defendant
pled, and we will consider the merits of a double jeopardy claim if the claim can be
resolved on the basis of that record. Based on the record as it existed when Mr. Redding
pled, we know: the elements of the offenses with which Mr. Redding was charged; the
conduct Mr. Redding admitted and the offenses to which he pled guilty; and the conduct
on which the State based the charged offenses. This is everything we need to determine
the merits of Mr. Redding’s double jeopardy claim, and we therefore find no factual gaps
in the record that would preclude our review.

[¶36] We also reject the State’s argument that this case should be likened to Broce,
where the record the Court had before it consisted solely of two charging documents
setting forth two distinct charges and the plea by which the defendant acknowledged the
separate charges and pled guilty to the separate charges. The State argues:

                   When Redding unconditionally pleaded no contest, he
             surrendered his right to assert that the charges against him


                                            14
              violated the Double Jeopardy Clause. In exchange, the State
              surrendered its right to pursue the felony charge and agreed to
              reduce the felony to a misdemeanor. When he pleaded no
              contest, Redding did not dispute the State’s theory that he
              committed two separate criminal acts—misdemeanor
              interference inside his house and felony interference outside
              his house. (Change of Plea and Sentencing Tr. At 80-81, July
              6, 2015). Both Redding and the State made concessions to
              enter the plea agreement, and the Court should not permit
              Redding to raise the double jeopardy defense that he waived
              by pleading no contest.

[¶37] Essentially, the State contends that Mr. Redding acknowledged he committed two
separate offenses when he entered his plea and his double jeopardy challenge
impermissibly contradicts that concession. The record does not support this argument.

[¶38] First, the plea agreement in this case was not a bargained-for waiver of Mr.
Redding’s double jeopardy claim as suggested by the State. During the plea hearing, the
prosecutor gave the State’s reason for reducing the charge against Mr. Redding from
felony interference to misdemeanor interference. The prosecutor explained the charge
was reduced because, upon review of Mr. Redding’s medical records, the State concluded
that Mr. Redding swung his elbow in reaction to “tremendous” pain he was experiencing
in his injured right hand, not in an attempt to resist arrest or interfere with the officer.
The prosecutor elaborated:

                     I’ve discussed this with the police officer involved,
              Michael Ableman, and he – he agrees. He knew that the
              Defendant was in pain. He thought they had resolved that in
              the house before leading him out; but he has no problem with
              this reduction to a misdemeanor to give the Defendant the
              benefit of the doubt on that point.
                     The State generally, on these types of cases, has a
              strong stance that in any – basically any case where
              somebody resists arrest and ends up causing the officer in
              question pain as a result of any kind of fight that occurs,
              basically he is going to get charged with a felony. It might
              get resolved down the line, but he is going to get charged and
              face that.
                     This is the first case where we’ve done this where it’s
              actually then come to light that maybe that was reaching too
              far. And everybody has had second thoughts about it – the
              police officer, myself, certainly the defense – so we’ve
              reached this conclusion that no, we’re just going to admit it


                                              15
               straight up that we want to give the Defendant the benefit of
               the doubt in this instance.

[¶39] Contrary to the State’s assertion, there was nothing in the parties’ plea agreement
to suggest that Mr. Redding acceded to the State’s theory of two separate and distinct
offenses. Indeed, during the plea hearing, the parties informed the district court that
because of the double jeopardy question, they had decided to use a no contest plea and
have the prosecutor provide the factual basis for the plea. Moreover, although the
prosecutor in providing a factual basis for Mr. Redding’s plea also expressly
distinguished the factual basis for the second misdemeanor interference charge from the
facts the State contended were the basis for the first misdemeanor charge, Mr. Redding
did not respond with a wholesale agreement to the State’s proffered distinction between
the offenses. When the district court asked defense counsel if he disputed that the State
would be able to put on such evidence, defense counsel limited his response, stating, “I
don’t dispute that the State would be able to have the officer testify that my guy grabbed
the gate and then elbowed the officer[.]”

[¶40] The present case is simply not a case like Broce where the record contains nothing
more than a charging document alleging separate and discrete offenses and the
defendant’s unqualified plea acknowledging and pleading guilty to those separate
offenses. Mr. Redding’s plea was not an unqualified acknowledgement of separate
offenses, and, as we noted above, the record as it existed when Mr. Redding entered his
plea contains all the information we need to resolve his double jeopardy claim. We
therefore find no waiver of that claim.4

[¶41] Having concluded that Mr. Redding’s no contest plea did not waive his double
jeopardy claim, we turn to the merits of that claim.

II.    Merits of Mr. Redding’s Double Jeopardy Claim

[¶42] Mr. Redding contends his felony interference prosecution violated his double
jeopardy protections because he had already pled guilty to misdemeanor interference, a
lesser included offense, for elbowing Officer Ableman when the State filed its
information charging felony interference for the same conduct. The State counters that
because Mr. Redding committed two separate offenses in two different locations at two
different times, with the misdemeanor interference occurring in his home when he
resisted arrest, and the felony interference occurring outside the home when he elbowed
Officer Ableman, his prosecution for two interference charges did not violate his double
jeopardy protections. We agree with the State.

4
 We do not mean with this holding to suggest that a no contest plea can never result in the waiver of a
double jeopardy defense. If the double jeopardy claim requires evidence outside the record to resolve a
disputed fact issue, the claim will be deemed waived by the plea.


                                                   16
[¶43] We have defined a defendant’s federal and state constitutional double jeopardy
protections as follows:

                    The Fifth Amendment to the United States
             Constitution and article 1, section 11 of the Wyoming
             Constitution protect a person from twice being put in
             jeopardy of prosecution, conviction, or punishment for the
             same criminal offense. Though the two provisions differ in
             language, this Court has stated, “they have the same meaning
             and are co-extensive in application.” Landeroz v. State, 2011
             WY 168, ¶ 17, 267 P.3d 1075, 1080 (Wyo.2011) (quoting
             Tucker v. State, 2010 WY 162, ¶ 41, 245 P.3d 301, 311
             (Wyo.2010)). Furthermore, we have said that the double
             jeopardy provisions of both Constitutions provide an accused
             three protections: “1) protection against a second prosecution
             for the same offense following an acquittal; 2) protection
             against a second prosecution for the same offense after a
             conviction; and 3) protection against multiple punishments
             for the same offense.” Id. (citing Vigil v. State, 563 P.2d
             1344, 1350 (Wyo.1977)).

Derrera v. State, 2014 WY 77, ¶ 23, 327 P.3d 107, 113 (Wyo. 2014); see also Bowlsby,
¶ 8, 302 P.3d at 916.

[¶44] To determine whether a defendant has been placed twice in jeopardy for the same
offense, we apply the statutory elements test set forth in Blockburger v. United States,
284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Sweets, ¶ 23, 307 P.3d at
868; Granzer v. State, 2010 WY 130, ¶ 13, 239 P.3d 640, 645 (Wyo. 2010). The
statutory elements test defines when one offense will be considered a lesser included
offense of another and is stated as follows:

             The applicable rule is that where the same act or transaction
             constitutes a violation of two distinct statutory provisions, the
             test to be applied to determine whether there are two offenses
             or only one, is whether each provision requires proof of an
             additional fact which the other does not.

Granzer, ¶ 13, 239 P.3d at 645.

[¶45] We have recognized that “misdemeanor interference with a peace officer is a
lesser-included offense of the greater charge of felony interference with a peace officer.”
Pope v. State, 2002 WY 9, ¶ 15, 38 P.3d 1069, 1072 (Wyo. 2002) (citing Mueller v.


                                             17
State, 2001 WY 134, ¶ 14, 36 P.3d 1151, ¶ 14 (Wyo. 2001)). We have also observed,
however, that:

              “‘“[w]here, * * * different criminal acts are at issue,
              supported by different factual evidence even though separated
              in time only by a few seconds, one offense by definition
              cannot be ‘included’ in the other. The defendants can
              properly be punished for [all], under different, or the same,
              statutory provisions.”’” Baum, 745 P.2d at 882, quoting State
              v. Molitoni, Hawaii App., 711 P.2d 1303, 1306 (1985),
              quoting State v. Pia, 55 Hawaii 14, 19, 514 P.2d 580, 584–
              585 (1973) (emphasis in original).

Duffy v. State, 789 P.2d 821, 826-27 (Wyo. 1990); see also Pope, ¶ 16, 38 P.3d at 1072
(“[T]he Blockburger analysis does not apply when the two charges involve different
victims and different actions.”).

[¶46] It is this rule of law we find controlling here. The record shows that when Mr.
Redding was informed that he was under arrest for breach of peace, he ran back into his
home and the officers had to wrestle with him inside the home to restrain him. Once the
officers had Mr. Redding restrained, they escorted him from the home. It was not until
they reached the gate that Mr. Redding again resisted the officers’ attempt to arrest him,
and it was there that Mr. Redding grabbed the gate and elbowed Officer Ableman in the
jaw. These events were removed by time and place from the altercation that took place in
the home and supported two separate interference charges.

[¶47] Mr. Redding’s two acts of interference were separate acts, and he therefore was
not prosecuted with two offenses for the same conduct. This is similar to the situation we
considered in Pope. In Pope, officers responded to a domestic disturbance at Pope’s
residence and encountered resistance when they attempted to arrest him. Pope, ¶¶ 4-6, 38
P.3d at 1070-71. Pope first struggled against two officers while in the upstairs portion of
his residence and then kicked a third officer as the first two officers were taking him
down a flight of stairs in his residence. Id., ¶¶ 6-7, 38 P.3d at 1070-71. Pope was then
charged with misdemeanor interference for his conduct toward the first two officers, and
felony interference for the injuries he inflicted on the third officer. Id., ¶ 9, 38 P.3d at
1071.

[¶48] Pope pled guilty to the misdemeanor interference charge and then sought dismissal
of the felony charge on double jeopardy grounds. Pope, ¶¶ 10-11, 38 P.3d at 1071. The
district court denied the motion to dismiss, and Pope was convicted following a jury trial.
Id., ¶¶ 11-12, 38 P.3d at 1071-72. On appeal, we rejected his double jeopardy claim,
reasoning:



                                             18
                       Under the facts of this case, it is clear that the charges
                involved two distinct actions against two different victims.
                Pope could be prosecuted for each of these incidents without
                violating his constitutional right to be free from being placed
                twice in jeopardy.

Pope, ¶ 19, 38 P.3d at 1073.

[¶49] The same is true here. Mr. Redding committed two separate acts of interference,
one inside his home and one outside his home, and double jeopardy does not preclude
him from being charged separately for each offense.

[¶50] Mr. Redding contends that Pope is distinguishable because the defendant in that
case knew of the felony charge when he pled guilty to the misdemeanor charge, whereas
Mr. Redding had no notice that the State would be filing the felony information against
him. Mr. Redding also points to the fact that in pleading guilty to the first misdemeanor
interference charge, he admitted that his conduct included accidentally elbowing Officer
Ableman in the jaw. Based on this admission, he contends that he was placed in jeopardy
for that conduct and could not be prosecuted a second time for the same conduct.

[¶51] Mr. Redding directs us to no authority that either the lack of notice of the
additional charge or his admission of conduct charged under the second offense is
material to a double jeopardy analysis. We find the arguments in fact run contrary to our
precedent.

[¶52] First, Mr. Redding’s argument that his admission during the first plea hearing
placed him in jeopardy for elbowing Officer Ableman is unpersuasive. We reject the
notion that a defendant can expand the scope of the charges against him by including
extraneous facts in his plea colloquy. The crime to which Mr. Redding pled guilty in
Circuit Court was “Interference – to wit resisting arrest,” in violation of Wyo. Stat. Ann.
§ 6-5-204(a). That crime is distinct from the felony with which Mr. Redding was later
charged, which includes causing or attempting to cause “bodily injury to a peace officer.”
Wyo. Stat. Ann. § 6-5-204(b). Thus, jeopardy attached only to the misdemeanor
interference offense relating to his altercation inside his home.5


5
  That is not to say we accept the State’s contention that it cleared up any confusion in the first charge
during the second plea hearing. A charge must “be sufficiently definite so that the defendant can prepare
his defense and be granted protection from further prosecution for the same offense (double jeopardy).”
Hulsy v. State, 2009 WY 81, ¶ 9, 209 P.3d 901, 904 (Wyo. 2009), citing Gonzales v. State, 551 P.2d 929,
933 (Wyo.1976). If the first charge against Mr. Redding were not sufficiently definite, we find it difficult
to see that a subsequent clarification during a plea hearing on a separate charge can cure that defect. The
adequacy of the charging documents is not, however, the question before this Court, and we therefore do
not consider it further.


                                                     19
[¶53] We find Mr. Redding’s notice argument equally unavailing. The argument
suggests that all charges relating to a single episode must be brought in a single
prosecution, but that proposition has been solidly rejected by the United States Supreme
Court and this Court:

             Expanding on that theme it has been argued that the
             government is obligated “to join at one trial all the charges
             against a defendant that grow out of a single criminal act,
             occurrence, episode, or transaction.” Ashe v. Swenson, 397
             U.S. 436, 453–454, 90 S.Ct. 1189, 1199–1200, 25 L.Ed.2d
             469 (1970) (Brennan, J., concurring). But that was not the
             view of the majority, a point emphatically driven home by
             Justice Harlan, ibid. at 448, 90 S.Ct. at 1196, and that notion
             has been subsequently rejected. In Garrett v. United States,
             471 U.S. at 790, 105 S.Ct. at 2417, the Court said: “We have
             steadfastly refused to adopt the ‘single transaction’ view of
             the Double Jeopardy Clause.” So it is in Wyoming, as well.
             State v. Carter, 714 P.2d 1217, 1220 (Wyo.1986). Within
             limits set by the legislature the State may chose [sic] how and
             when it will charge different offenses arising from the same
             incident, but it may try the same offense only once.

Nowack v. State, 774 P.2d 561, 566 (Wyo. 1989).

[¶54] Because the order in which the State chooses to charge separate offenses arising
from the same incident does not implicate double jeopardy concerns, we can discern no
double jeopardy requirement that the State provide notice of all potential charges before a
court may accept a guilty plea. It may be that Mr. Redding feels he did not receive
adequate notice of his full criminal exposure and alternatives before entering his first
guilty plea. He did not, however, appeal his first conviction or move to withdraw his
plea, and since his concerns are not relevant to our double jeopardy analysis, we do not
consider them further.

[¶55] Mr. Redding committed two separate offenses at two different times during the
events of December 26, 2014. The misdemeanor interference occurred in his home when
he resisted arrest, and the felony interference occurred outside his home when he elbowed
an officer. His prosecution for two interference charges therefore did not violate his
double jeopardy protections.

                                    CONCLUSION

[¶56] We hold that a reviewing court may consider the merits of a defendant’s double
jeopardy challenge following entry of an unconditional guilty or no contest plea if the


                                             20
claim can be resolved on the basis of the charging documents and/or the record as it
existed at the time the defendant pled. If resolution of the claim requires evidence
outside the existing record, the claim shall be deemed waived by the guilty or no contest
plea.

[¶57] In this case, we are able to determine the merits of Mr. Redding’s double jeopardy
claim based on the existing record, and we therefore find no waiver of that claim. On the
merits, however, we find no double jeopardy violation. Mr. Redding committed two
separate acts of interference, one inside his home and one outside his home, and could
lawfully be prosecuted for each separate offense.




                                            21
