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.
[¶ 2] Mr. Redding presents a single issue for our review and states that issue as follows:
[¶ 3] The State responds with a similarly stated issue and the following additional issue:
[¶ 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
[¶ 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 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:
[¶ 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 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 agreement).
[¶ 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 waiver question in response to Mr. Redding's appeal, we take this opportunity to address the distinction.
[¶ 17] Our first task in considering the waiver question is to determine the rule that
[¶ 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:
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:
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
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:
Broce, 488 U.S. at 574-76, 109 S.Ct. at 765-66 (emphasis added).
[¶ 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:
State v. Kelty, 2006 WI 101, ¶ 38, 294 Wis.2d 62, 716 N.W.2d 886, 897 (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):
[¶ 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
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.
[¶ 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:
Commonwealth v. Negron, 462 Mass. 102, 967 N.E.2d 99, 102-03 (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:
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.
[¶ 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
[¶ 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:
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:
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:
[¶ 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:
[¶ 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.
[¶ 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.
[¶ 43] We have defined a defendant's federal and state constitutional double jeopardy protections as follows:
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:
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. State, 2001 WY 134, ¶ 14, 36 P.3d 1151, ¶ 14 (Wyo. 2001)). We have also observed, however, that:
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
[¶ 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:
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.
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.
[¶ 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 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.
