People v. Carrillo

Judge BERNARD

specially concurring.

48 I would not address the unpreserved non-constitutional statutory interpretation issue that is the focus of the majority opinion. I respectfully submit that it is not properly before us because it should have been raised at defendant's sentencing hearing. See People v. Tillery, 231 P.3d 36, 55-56 (Colo.App.2009) (Bernard, J., specially concurring) (questioning whether unpreserved sentencing errors, including allegations of double jeopardy error, are subject to plain error review), aff'd on other grounds sub nom. People v. Simon, 266 P.3d 1099 (Colo.2011).

€49 Defendant also raises unpreserved constitutional arguments that the majority does not need to resolve to reach its result. I would not address them, either. See People v. Lesney, 855 P.2d 1364, 1366 (Colo.1993) (the supreme court will not address the constitutionality of a statute if that issue "is not presented to the trial court and is [instead] raised for the first time on appeal"); People v. Cagle, 751 P.2d 614, 619 (Colo.1988) ("It is axiomatic that this court will not consider constitutional issues raised for the first time on appeal."); Tillery, 231 P.3d at 55-56 (Bernard, J., specially concurring).

150 As a result, I would dismiss defendant's appeal, which would, as the majority opinion does, leave his sentence undisturbed.