97-322

 No. 97-322

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1997

STATE OF MONTANA, 

 Plaintiff and Respondent, 

 v.

RICHARD DEAN WHEELER, 

 Defendant and Appellant. 

APPEAL FROM: District Court of the Sixth Judicial District, 

 In and for the County of Park, 

 Honorable Wm. Nels Swandal, Judge Presiding.

COUNSEL OF RECORD:

 For Appellant:

 Dan Yardley, Law Office of Yardley & Yardley, Livingston, Montana

 For Respondent:

 Honorable Joseph P. Mazurek, Attorney General; John Paulson, 

 Assistant Attorney General, Helena, Montana

 Tara DePuy, County Attorney, Livingston, Montana

 Submitted on Briefs: October 9, 1997

 Decided: November 13, 1997

Filed:

 __________________________________________

 Clerk

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Chief Justice J. A. Turnage delivered the Opinion of the Court. 

 Richard Dean Wheeler was convicted of driving under the influence of alcohol

(DUI), fourth offense, in the Sixth Judicial District Court, Park County, after he 

pled

guilty to the charge against him. He appeals. We affirm.

 The dispositive issue is whether Wheeler's guilty plea forecloses his argument 

that

the District Court erred in denying his motion to exclude his three prior DUI 

convictions

as a basis for designating the June 1996 charge as his fourth DUI offense.

 Wheeler was charged with DUI, fifth offense, in Park County, Montana, in June

1996. The affidavit in support of the information alleged that Wheeler had four 

previous

DUI convictions and that he did not have a driver's license in his possession. 

Under õ

61-8-714(4), MCA (1995), a conviction of a fourth or subsequent offense DUI is a

felony. 

 Wheeler moved to dismiss the charge, arguing that the 1995 amendments to

Montana's DUI statutes violated constitutional ex post facto provisions and that a 

felony

penalty was disproportionate to his offense. The motion to dismiss did not challenge

either the number or the validity of his prior convictions. The District Court 

denied the

motion to dismiss. 

 Wheeler subsequently pled guilty to DUI, fifth offense, pursuant to a plea

agreement in which the State agreed to recommend that Wheeler be placed in an 

intensive

supervision program rather than at the state prison or county jail. After the plea

agreement was filed, the court ordered a presentence investigation. 

 The presentence investigation report documented that Wheeler had been convicted

of DUI in Colorado once in 1988 and twice in 1989. The report also stated that 

Wheeler

admitted that he had been convicted of DUI in 1991, but that the 1991 conviction did 

not

appear in computer records of his criminal history.

 After the presentence investigation report was filed, but before his sentencing

hearing, Wheeler moved to expunge his Colorado DUI convictions, arguing that those

convictions would have been expunged if they had occurred in Montana. He also argued

that the Driver License Compact, õõ 61-5-401 through -406, MCA, requires Montana to

treat out-of-state convictions as if they occurred in this state. The State 

responded by

arguing that Colorado was Wheeler's home state when he received his DUI convictions,

that the Driver License Compact did not apply, and that Wheeler had no reasonable

expectation that his Colorado convictions would be expunged. During the sentencing

hearing, the District Court orally denied Wheeler's motion to expunge, but the court 

did

not file a separate written order setting forth its rationale. The court sentenced 

Wheeler

according to the plea agreement, but the judgment provided that his sentence was for

fourth, rather than fifth, offense DUI.

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 Discussion

 Does Wheeler's guilty plea foreclose his argument that the District Court erred

in denying his motion to exclude his three prior DUI convictions as a basis for

designating the June 1996 charge as his fourth DUI offense?

 After a criminal defendant pleads guilty and thereby admits that he is guilty 

of the

offense charged, he may only attack the voluntary and intelligent character of his 

plea and

may not raise independent claims relating to prior deprivation of his constitutional 

rights. 

State v. Hilton (1979), 183 Mont. 13, 18, 597 P.2d 1171, 1174. A voluntary and

intelligent plea of guilty constitutes a waiver of nonjurisdictional defects and 

defenses. 

Hagan v. State (1994), 265 Mont. 31, 35, 873 P.2d 1385, 1387.

 Wheeler has not challenged the voluntary and intelligent nature of his plea, 

nor has

he sought to withdraw the plea entered under the plea agreement. He did not reserve 

the

right to appeal any pre-plea adverse rulings of the District Court. Thus, by 

pleading

guilty, Wheeler has waived all nonjurisdictional claims for purposes of appellate 

review.

 In Hagen, 873 P.2d at 1388, this Court adopted the description of jurisdictional

claims in the context of waiver set forth in United States v. Cortez (9th Cir. 

1992), 973

F.2d 764. Cortez limited jurisdictional claims to "those cases in which the 

district court

could determine that the government lacked the power to bring the indictment at the 

time

of accepting the guilty plea from the face of the indictment or from the record." 

Cortez,

973 P.2d at 767, citing United States v. Broce (1989), 488 U.S. 563, 109 S.Ct. 757, 

102

L.Ed.2d 927. 

 When the District Court accepted Wheeler's plea of guilty, the State had the 

power

to bring the charge against him, nothing to the contrary being evident from the face 

of

the information or from the record. The State was authorized under õ 61-8-714(4), 

MCA

(1995), to charge Wheeler with felony DUI because the information alleged that he had

four previous DUI convictions. Wheeler did not contest the number or validity of his

prior convictions before entering his guilty plea, and he did not argue that the 

prior

convictions should be expunged from his record. The presentence investigation was 

not

then before the court, and the record did not contain sufficient information for the 

court

to determine whether the government lacked the power to bring the charge based upon

Wheeler's present contention.

 Wheeler attempts to argue that his Colorado DUI convictions were relevant only

at his sentencing and did not affect his plea of guilty to the Montana charge, so 

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that his

motion to expunge was timely because it was made before he was sentenced. The record

proves otherwise. Wheeler was specifically charged with fifth offense DUI, a 

felony. 

In pleading guilty, he acknowledged the felony nature of the charge against him and 

the

maximum possible penalty of imprisonment for ten years and a $10,000 fine, both of

which apply only to fourth or subsequent DUI offenses. The number of previous

convictions clearly came into play both in the charge filed against Wheeler and in 

his plea

agreement. It cannot correctly be said that the Colorado convictions were relevant 

only

at sentencing. 

 We conclude that Wheeler's expungement claim is a nonjurisdictional claim which

was waived by the entry of his guilty plea. Wheeler's argument on appeal having been

waived by his entry of a guilty plea, we affirm the judgment of the District Court. 

 /S/ J. A. TURNAGE

We concur:

/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIAM LEAPHART

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