People v. Kadell

COLORADO COURT OF APPEALS 2017COA124
Court of Appeals No. 13CA2021
City and County of Denver District Court Nos. 11CR3189 & 11CR4812
Honorable Brian R. Whitney, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Roger Jay Kadell,
Defendant-Appellant.
SENTENCE REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE WELLING
Graham, J., concurs
J. Jones, J., concurs in part and dissents in part
Announced October 5, 2017
Cynthia H. Coffman, Attorney General, Megan C. Rasband, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Karen Mahlman Gerash,
Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 The defendant, Roger Jay Kadell, appeals the trial court’s
imposition of a sentence under the habitual criminal statute.
Kadell contends that there is insufficient evidence that he was
convicted of three qualifying felonies before his current convictions.
We agree and conclude that, as a matter of first impression, for a
prior drug felony conviction to qualify as a predicate offense under
the habitual criminal statute, the prosecution must prove that the
prior offense of conviction remained a felony under Colorado law at
the time the defendant committed the new offense, even when the
prior conviction was entered in Colorado. Because the prosecution
did not present sufficient evidence of this fact at Kadell’s sentencing
hearing, we reverse Kadell’s sentence and remand for further
proceedings.
I. Background
¶2 A jury convicted Kadell of six counts of robbery and one count
of aggravated motor vehicle theft, each of which is a class 4 felony.
Before sentencing, the trial court adjudicated Kadell a habitual
criminal based on three prior felony convictions: in 1997 for
attempted cultivation of marijuana; in 2005 for theft-by-receiving;
and in 2006 for aggravated motor vehicle theft. The trial court
1
imposed a sentence of twenty-four years in the custody of the
Department of Corrections, four times the presumptive maximum
sentence for a class 4 felony, in accordance with the habitual
criminal statute.
II. Analysis
¶3 Kadell raises three issues on appeal. First, he contends that
the trial court misapplied the habitual criminal statute. Second, he
contends the trial court erred by denying a motion to suppress his
prior convictions. Finally, Kadell contends the trial court erred by
failing to give his sentence an extended proportionality review. We
examine each of these issues in turn.
A. Habitual Criminal Finding
¶4 Kadell contends that his 1997 conviction for attempted
cultivation of marijuana does not count as a felony under the
habitual criminal statute. He argues that in 2011, when he
committed his offenses in this case, attempted cultivation of
marijuana was no longer a felony in Colorado unless the defendant
possessed more than six plants and because the trial court had no
evidence of how many plants were involved in the 1997 conviction,
2
that conviction could not have counted as a predicate felony under
the habitual criminal statute. We agree.
1. Standard of Review
¶5 Kadell frames his argument as a challenge to the sufficiency of
the evidence. Ordinarily, a defendant may raise a sufficiency of the
evidence claim for the first time on appeal. People v. Garcia, 2012
COA 79, ¶ 35. But Kadell’s argument is no ordinary sufficiency of
the evidence of challenge; rather, his claim is premised solely on an
interpretation of the habitual criminal statute.
¶6 During the habitual phase of trial, Kadell did not raise the
statutory interpretation argument he now advances on appeal.
Instead, Kadell made a general argument that there was insufficient
evidence that he committed any of the prior felonies. Because of
this, the People contend that the issue should be reviewed only for
plain error. See Hagos v. People, 2012 CO 63, ¶ 18. Kadell
disagrees. The same disagreement divides this court.1 Compare
1 Our supreme court has granted certiorari in a case involving this
very issue and that case will likely resolve the appropriate standard
of review to apply when a defendant challenges the sufficiency of
the evidence by raising a novel issue of statutory interpretation for
3
People v. McCoy, 2015 COA 76M, ¶¶ 21, 36 (defendant may, for the
first time on appeal, argue a sufficiency of the evidence claim which
is dependent on an statutory interpretation) (cert. granted in part
Oct. 3, 2016), with People v. Heywood, 2014 COA 99, ¶ 38 (applying
plain error standard because “unpreserved sufficiency claim is no
different than any other unpreserved error”), and People v. Lacallo,
2014 COA 78, ¶¶ 6, 20 (applying plain error standard to
defendant’s statutory argument that was not “even impliedly” raised
in trial court). We do not need to stake out a position in this
dispute, however, because we conclude that the trial court’s
decision to count Kadell’s 1997 felony conviction as a prior felony
under the habitual criminal statute necessitates reversal even on
plain error review.
2. Habitual Criminal Statute and Changes in the Law
¶7 Before discussing how the trial court’s interpretation
necessitates reversal, it is helpful to discuss how the habitual
criminal statute deals with underlying convictions when there has
been a change in law.
the first time on appeal. See Maestas v. People, (Colo. No.
15SC180, Oct. 26, 2015) (unpublished order).
4
¶8 Under the habitual criminal statute, every person convicted of
a felony who has been three times previously convicted of a felony
shall be adjudged a habitual criminal and shall receive a sentence
of four times the maximum presumptive range. § 18-1.3-
801(2)(a)(I), C.R.S. 2017. Kadell was so adjudicated in this case.
The statute contains an exception, however, that “[n]o drug law
conviction shall be counted as a prior felony conviction . . . unless
such prior offense would be a felony if committed in this state at the
time of the commission of the new offense.” § 18-1.3-801(3).
¶9 In 1997, Kadell pleaded guilty to a class 5 felony of attempted
cultivation of marijuana. The Colorado statute under which Kadell
pleaded guilty in 1997 provided that it was a crime for a person to
knowingly “cultivate, grow, produce, process, or manufacture any
marihuana or marihuana concentrate,” regardless of quantity.
§ 18-18-406(8), C.R.S. 1997. Attempt to cultivate marijuana was a
class 4 or 5 felony depending on whether it was the defendant’s first
offense under that section. Id.; see also § 18-2-101(4), C.R.S. 1997
(attempt to commit class 4 felony is a class 5 felony).
¶ 10 In 2011, when Kadell committed the offenses in this case, it
was a class 6 felony to attempt to cultivate marijuana “if the offense
5
involv[ed] more than six but fewer than thirty plants.” § 18-18-
406(7.5)(b), C.R.S. 2011; see also § 18-2-101(4), C.R.S. 2011.2 But,
in 2011, if the offense involved six or fewer plants, attempted
cultivation of marijuana was a class 2 misdemeanor. § 18-18-
406(7.5)(a), C.R.S. 2011; see also § 18-2-101(6), C.R.S. 2011
(attempt to commit class 1 misdemeanor is a class 2 misdemeanor).
So, in 1997, attempted cultivation of marijuana was a felony no
matter how many plants were involved, whereas in 2011 the crime
was only a felony if the prosecution proved that the offense involved
more than six plants.
¶ 11 The question, from a sufficiency of the evidence standpoint,
becomes whether the evidence introduced during the habitual
phase of the trial in this case is sufficient to prove that Kadell’s
1997 conviction for attempted cultivation of marijuana would still
be a felony in 2011, meaning that it involved more than six plants.
On this point, the parties agree, and the record supports, that
2 With respect to classifying the crime based on the number of
plants, the statute remains largely unchanged today. See § 18-18-
406(3)(a)(II), C.R.S. 2017 (a person commits level 4 drug felony if he
or she knowingly cultivates, grows, or produces more than six but
fewer than thirty marijuana plants).
6
evidence introduced during the habitual phase of trial does not
establish that more than six plants were involved in Kadell’s 1997
conviction.
3. The Trial Court Erred by Not Applying Section 18-1.3-801(3) to
Kadell’s 1997 Conviction
¶ 12 We now turn to the People’s contention that, given the
language of the statute, the exception found in subsection (3) does
not apply to Kadell’s 1997 conviction.
¶ 13 In interpreting a statute, our primary goals are to discern and
give effect to the General Assembly’s intent. People v. Shores, 2016
COA 129, ¶ 16. We look first to the statutory language, giving the
words and phrases their plain and ordinary meanings. Id. After
doing this, if we determine that the statute is not ambiguous, we
enforce it as written and do not resort to other rules of statutory
construction. Id. “The plainness or ambiguity of statutory
language is determined by reference to the language itself, the
specific context in which that language is used, and the broader
context of the statute as a whole.” People v. Diaz, 2015 CO 28, ¶ 13
(quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)).
7
¶ 14 First, the People argue that the section of the statute
exempting prior felony drug convictions applies only to out-of-state
felony drug convictions. We disagree.
¶ 15 The plain language of the statutory exception at issue here
provides that a “drug law conviction” is exempt from counting
towards a defendant’s prior felony convictions under habitual
criminal statute if the underlying drug offense is no longer a felony
in Colorado. § 18-1.3-801(3).
¶ 16 Nothing in the plain language of the statute suggests that it
applies only to out-of-state convictions. The statute refers broadly
to a “drug law conviction” without any apparent limitation as to the
state of conviction. Id. The only modifier clarifies that the “drug
law conviction” must still be a felony “in this state,” meaning that a
drug law conviction must be a felony in Colorado, and not
necessarily that it must be a felony in the jurisdiction where it
arose, at the time the new offense was committed. Id. Because the
plain language is clear, we must apply the statute as written and
conclude that the exception found in subsection (3) applies to
Colorado drug law convictions.
8
¶ 17 The People also argue that subsection (3) should apply only to
out-of-state convictions because other portions of the habitual
criminal statute make specific reference to out-of-state convictions.
We are not persuaded.
¶ 18 The habitual criminal statute provides generally that
qualifying felonies include those crimes that were felonies “under
the laws of any other state, the United States, or any territory
subject to the jurisdiction of the United States,” if the crime would
be a felony in Colorado. See § 18-1.3-801(1)(b)(II) (lifetime habitual
sentence); § 18-1.3-801(1.5) (little habitual sentence); § 18-1.3-
801(2) (big habitual sentence). But the legislature’s use of this
language in other subsections favors Kadell’s suggested
interpretation of subsection (3), not the People’s.
¶ 19 In telling contrast to subsections (1)(b)(III), (1.5), and (2),
subsection (3) does not mention or distinguish out-of-state
convictions from those suffered in Colorado. Instead, it simply
provides that the exception applies to a “drug law conviction.” This
linguistic distinction has been present since the General Assembly
first enacted subsection (3).
9
¶ 20 Subsection (3) first appeared in 1976 and remains unchanged
today. Ch. 93, sec. 6, § 16-13-101(3), 1976 Colo. Sess. Laws 548.
When subsection (3) was enacted, the statute already included
language akin to the current subsections (1)(b)(III), (1.5), and (2).
§ 16-13-101(1) and (2), C.R.S. 1976. As the statute existed in 1976,
crimes that triggered habitual criminal penalties included felonies
“under the laws of any other state, the United States, or any
territory subject to the jurisdiction of the United States.” Id.
Despite having included language in other parts of the statute
specifically referencing out-of-state convictions, the legislature left
such language out of subsection (3).
¶ 21 The General Assembly has amended the habitual statute
multiple times since 1976, without ever adding a reference to out-
of-state convictions in subsection (3).3 So, even though subsections
(1)(b)(III), (1.5), and (2) specifically reference out-of-state
convictions, subsection (3) has remained consistent in that it lacks
that similar language. The consistency of subsection (3) and its
3 Those amendments include a significant revision in 2002 when
many criminal procedure statutes, including the habitual criminal
statute, were moved from Title 16 to Title 18. See Ch. 318, sec. 2,
§ 18-1.3-801, 2002 Colo. Sess. Laws 1426-28.
10
distinct language further supports the conclusion that had the
legislature intended subsection (3) to apply only to out-of-state
crimes, it would have said so. Robinson v. Colo. State Lottery Div.,
179 P.3d 998, 1010 (Colo. 2008) (“[T]he use of different terms [in a
statute] signals an intent on the part of the General Assembly to
afford those terms different meanings.”). To conclude otherwise
would have us read words where none exist. Colo. Dep’t of Revenue
v. Creager Mercantile Co., 2017 CO 41M, ¶ 25 (Courts must “not
substitute or add words to statutes.”).
¶ 22 Next, the People contend that the 1997 conviction counts as a
prior felony under the habitual criminal statute because cultivation
of marijuana could be a felony under the 2011 statute. Again, the
language of the statute belies the People’s urged interpretation. The
statute provides that a drug conviction only counts if the “prior
offense would be a felony” when the defendant commits the new
offense. § 18-1.3-801(3) (emphasis added). The statute does not
provide that a drug-law felony counts as a prior felony under the
habitual criminal statute if at the time of the new offense there was
a possibility that the defendant could face a felony charge under
Colorado law.
11
¶ 23 During the habitual phase of trial, the prosecution bears the
burden of proving beyond a reasonable doubt that the defendant
was previously convicted as alleged in the habitual counts. People
v. Nunn, 148 P.3d 222, 225 (Colo. App. 2006). In this case, the
prosecution alleged that Kadell was convicted of felony attempted
cultivation of marijuana. And given its language, the statute
imposes another burden on the prosecution — to establish that the
1997 felony “would be a felony” if committed in 2011, when Kadell
committed the offenses in this case. § 18-1.3-801(3). As discussed
above, the People presented insufficient evidence at Kadell’s
sentencing hearing to carry this latter burden.
¶ 24 Finally, the People contend that exempting Colorado drug law
convictions from the reach of subsection (3) comports with the
overall purpose of the habitual criminal statutory scheme, which is
to punish recidivist offenders. See People v. Dist. Court, 711 P.2d
666, 670 (Colo. 1985) (“The purpose of the Habitual Criminal Act is
to punish more severely those individuals who show a propensity
toward repeated criminal conduct.”). But only when the statute is
ambiguous do we look beyond its text and deploy interpretative
tools such as the legislative history or the ends the General
12
Assembly was attempting to attain. McCoy, ¶ 38.4 Section 18-1.3-
801(3) is unambiguous, so we venture no further and, instead,
apply the statute as written.
4. Plain Error
¶ 25 As discussed above, we assume a plain error standard of
review applies to this case. Plain error is error that is both obvious
and substantial. Hagos, ¶ 18. While substantiality is not in
dispute, obviousness is. An obvious error is one that contravenes a
clear statutory command, a well-settled legal principle, or Colorado
case law. People v. Pollard, 2013 COA 31M, ¶ 40. There are no
reported decisions interpreting subsection (3) so the trial court
could not have contravened Colorado case law and the application
of subsection (3) is far from a well-settled legal principle, but the
trial court did contravene the statute.
¶ 26 The People contend that the error is not obvious because
nothing in the statute or case law would have alerted the court to
4 Even if the statute was ambiguous, “no legislation pursues its
purposes at all costs.” Rodriguez v. United States, 480 U.S. 522,
525-26 (1987). The language in subsection (3) evinces a legislative
intent to temper the reach of the habitual sentencing scheme with
respect to defendants who had previously suffered felony drug law
convictions for conduct that is no longer a felony in Colorado.
13
the error. See People v. Mendoza, 313 P.3d 637, 641 (Colo. App.
2011). But the trial court is deemed to know the statute. People v.
Helms, 2016 COA 90, ¶ 69. While the lack of prior guidance is one
consideration we must take into account when determining whether
the trial court committed obvious error, it is not the only
consideration. Violating a statute can be obvious error even if it is
not coupled with another error. People v. Mosley, 167 P.3d 157,
161 (Colo. App. 2007) (trial court commits obvious error by failing
to follow statutory procedure for child victim testimony), aff’d, 2017
CO 20. Further, as discussed above, our interpretation of
subsection (3) is informed by nothing more than its plain language.
When we rely only on the plain language of the statute, an error is
more likely to be obvious. Heywood, ¶ 36 (error is obvious because
court applies general meaning to terms and statute is
unambiguous); see also United States v. Hernandez, 690 F.3d 613,
622 (5th Cir. 2012) (error is particularly obvious when it involves a
“straightforward misapplication” of the plain language of a
sentencing guideline).
¶ 27 For these reasons, we conclude that the trial court’s failure to
consider the application of subsection (3) was an obvious error.
14
And because the error resulted in Kadell being sentenced under the
big habitual provision without sufficient evidence that his 1997
conviction counted as a prior felony, the error was substantial, and,
therefore, we conclude that the trial court committed plain error.
¶ 28 In summary, we conclude that under the plain language of
section 18-1.3-801(3), a drug-law felony, regardless of what
jurisdiction the conviction arose from, does not count as a prior
felony under the habitual criminal statute unless the prosecution
proves that the prior felony was still a felony in this state at the
time of the commission of the new offense. Because the record does
not support that Kadell was convicted in 1997 of a 2011 drug-law
felony, the 1997 conviction does not count as a prior felony under
the habitual criminal statute. The trial court’s failure to consider
the application of subsection (3) to Kadell’s felony conviction
constitutes plain error. Accordingly, we remand the case for
resentencing. But what does that resentencing proceeding look
like? That is where we turn next.
5. Procedure on Remand
¶ 29 Kadell requests that we remand the case with directions to
impose a sentence commensurate with him having two prior felony
15
convictions.5 That remedy, however, would foreclose the
prosecution’s opportunity to prove that the 1997 conviction involved
six or more plants, proof necessitated by contentions Kadell raised
for the first time on appeal.
¶ 30 As discussed above, subsection (3) was never mentioned either
before or during the habitual phase of the trial. In the sentencing
context, remand is appropriate when we disagree with the trial
court’s interpretation of a statute. See People v. Archuleta-Ferales,
2014 COA 178, ¶ 10 (remanding for further proceedings when court
of appeals provides a statutory interpretation of the drug offender
surcharge statute). This is especially true when the prosecution did
not have an opportunity to prove its case in the first instance. See
People v. Gomez, 211 P.3d 53, 57 (Colo. App. 2008) (holding that
while Curtis advisement was inadequate, prosecution was entitled
to show that defendant’s choice not to testify was nevertheless
5 In addition to sentencing a defendant who has three prior felonies,
the habitual statute allows for a shorter sentence for defendants
who have two prior felonies in the proceeding ten years. § 18-1.3-
801(1.5), C.R.S. 2017. Kadell does not dispute that the other two
predicate felonies can serve as the basis for a habitual criminal
sentence.
16
voluntary), abrogated on other grounds by Moore v. People, 2014 CO
8.
¶ 31 An exception, of course, would be if a subsequent proceeding
exposes the defendant to double jeopardy. But, in People v. Porter,
2015 CO 34, ¶ 4, our supreme court held that double jeopardy did
not bar a subsequent habitual proceeding in a second trial when
the judgment in the first trial was reversed on appeal. According to
Porter, both the Colorado and Federal Constitutions ensure that a
defendant will not be twice put in jeopardy for the “same offense,”
but the habitual criminal statute creates a status rather than an
offense. Id. at ¶ 26. So, no jeopardy concerns arise with respect to
remanding the case for additional habitual proceedings.
¶ 32 Thus, we remand the case for proceedings to determine the
applicability of section 18-1.3-801(3) to the 1997 conviction, namely
whether Kadell’s 1997 conviction would still be a felony under
Colorado law in 2011, when Kadell committed the offenses in this
case. We would like to provide the trial court and parties more
explicit guidance regarding what evidence would or would not be
sufficient to prove that the 1997 conviction qualifies as a 2011
felony. But because the application of section 18-1.3-801(3) to the
17
1997 conviction was not raised at Kadell’s original sentencing
hearing, the record in this case contains a dearth of information
regarding what evidence may be available to be presented on
remand. Accordingly, any more detailed guidance would constitute
an advisory opinion, which must be avoided where, as here, we
would be speculating as to the underlying facts and evidence that
may be presented on remand. See Bd. of Cty. Comm’rs v. Cty. Rd.
Users Ass’n, 11 P.3d 432, 438-40 (Colo. 2000) (an appellate court is
not empowered to render advisory opinions over cases that are not
ripe or based on facts that are contingent, speculative, or
hypothetical); People v. Becker, 2014 COA 36, ¶ 29 (“Addressing the
issues would therefore result in an advisory opinion, which risks
improperly depriving the parties of their prerogative to litigate the
case as they choose.”).
B. Collateral Attack on Convictions
¶ 33 Kadell next argues that the trial court erred by finding that his
failure to timely file a collateral attack on his prior convictions was
not the result of excusable neglect. The record does not reflect that
the trial court ever ruled on Kadell’s excusable neglect claim.
18
¶ 34 Shortly after the prosecution filed the habitual criminal
counts, Kadell filed a motion to suppress his prior felony
convictions, as a means of collaterally attacking those convictions.
Motions to collaterally attack a felony conviction must be brought
within three years of the conviction. § 16-5-402(1), C.R.S. 2017.
Kadell’s motion was untimely, but he argued that his failure to file
within three years was a result of excusable neglect. See § 16-5-
402(2)(d) (time limit is excused if court hearing the collateral attack
finds that failure to file on time was the result of excusable neglect).
The trial court never ruled on Kadell’s excusable neglect claim.
¶ 35 At a post-trial status conference, when the matter was being
covered by substitute defense counsel, the trial court indicated that
it was “going to deny” Kadell’s motion, but it set the matter over for
a ruling, which would allow Kadell’s counsel to make a record
regarding the impending denial. The next day, with Kadell’s
counsel present, the trial court did not issue a ruling, but rather
held the issue in abeyance so that counsel could submit transcripts
from the prior cases to make a more complete record regarding
Kadell’s excusable neglect claim. After two more continuances, the
trial court held a hearing where it made habitual criminal findings
19
and sentenced the defendant, but did not rule on the excusable
neglect issue.
¶ 36 At the final sentencing hearing, defense counsel requested
that the trial court “reconsider” its previous ruling regarding
excusable neglect. The trial court responded,
Reconsideration can take place afterwards, if I
deem it’s necessary, based . . . upon the
evidence that you’re going to file. But we’re
going to get into a whole lot of superfluous
matters, if we go back into the . . . evidence of
lack of excusable neglect; which correct me if
I’m wrong, I ruled they didn’t exist in this case.
¶ 37 The court went on to say that excusable neglect can be
pursued on appeal or by seeking postconviction relief pursuant to
Crim. P. 35. But the trial court, in fact, had never ruled.
¶ 38 The issue of excusable neglect is a question of fact to be
resolved first by the trial court. People v. Wiedemer, 852 P.2d 424,
442 (Colo. 1993). Courts must consider a number of factors in
addressing the applicability of the excusable neglect bar exception
including the following:
(1) whether there are circumstances or outside
influences preventing a challenge to a prior
conviction and the extent to which a defendant
having reason to question the constitutionality
of a conviction investigates its validity and
20
takes advantage of avenues of relief that are
available;
(2) whether a defendant had any previous need
to challenge a conviction and either knew that
the conviction was constitutionally infirm or
had reason to question its validity;
(3) whether a defendant had other means of
preventing the government’s use of the
conviction so that a postconviction challenge
was previously unnecessary; and
(4) whether the passage of time has had an
effect on the state’s ability to defend against
the challenge.
People v. Martinez-Huerta, 2015 COA 69, ¶ 12 (citing Close v.
People, 180 P.3d 1015, 1019-20 (Colo. 2008); Wiedemer, 852 P.2d
at 441-42). The trial court need not hold a hearing on a defendant’s
request to invoke the excusable neglect exception in every instance.
People v. Xiong, 940 P.2d 1119, 1119 (Colo. App. 1997) (A court
may summarily deny an untimely request “if the defendant has
failed to allege facts which, if true, would establish justifiable
excuse or excusable neglect.”). But when the trial court fails to
consider the factors that could establish excusable neglect, we must
remand for further proceedings. People v. Chavez-Torres, 2016 COA
169M, ¶ 28 (Remand is appropriate where “the record is silent with
respect to whether the district court considered and weighed these
21
factors.”). Here, there is no indication that the trial court
considered any of the factors or made the requisite findings.
¶ 39 On remand, if the trial court finds no justifiable excuse or
excusable neglect, the trial court need not reach the merits of
Kadell’s collateral attack. Martinez-Huerta, ¶ 25. If, on the other
hand, the trial court finds that Kadell’s failure to timely file was the
result of a justifiable excuse or excusable neglect, the trial court
should address the merits of Kadell’s claim. Id.
C. Proportionality Review
¶ 40 Last, Kadell seeks an extended proportionality review of his
sentence. Under the Eighth Amendment a defendant is entitled to a
proportionality review of his or her sentence, part of which involves
evaluating the harshness of the penalty. Solem v. Helm, 463 U.S.
277, 291 (1983). In light of our conclusion in Part II.A of this
opinion, the case must be remanded for resentencing. Therefore,
Kadell’s argument seeking an extended proportionality review is
moot at this juncture. Club Matrix, LLC v. Nassi, 284 P.3d 93, 99
(Colo. App. 2011) (this court does not have to address arguments
rendered moot by our disposition of other issues).
22
III. Conclusion
¶ 41 Kadell’s sentence is reversed and the case is remanded to the
trial court for further proceedings consistent with this opinion.
JUDGE GRAHAM concurs.
JUDGE J. JONES concurs in part and dissents in part.
23
JUDGE J. JONES, concurring in part and dissenting in part.
¶ 42 I concur in the majority’s decision to remand the case for the
district court to decide whether defendant’s failure to collaterally
attack his prior convictions sooner was a result of excusable
neglect. But I dissent from the majority’s reversal of the district
court’s habitual criminal adjudication based on defendant’s prior
felony marijuana cultivation conviction.
¶ 43 In resolving defendant’s challenge to the district court’s
habitual criminal finding on his prior felony conviction for
cultivation of marijuana, the majority says it applies the plain error
test. But it does so only assuming, without deciding, that plain
error is the correct test. In my view, because the claimed error —
the court’s finding despite an absence of proof that defendant’s
prior conviction involved more than six plants, as required by
section 18-1.3-801(3), C.R.S. 2017 — is unpreserved, plain error is
the only possible test.1 Applying the plain error test comports with
1Defendant asserts that he did preserve the issue. But his
argument to the district court against this count wasn’t the same
one he makes on appeal. Simply put, because he didn’t draw the
court’s attention to the issue, it’s not preserved. Martinez v. People,
2015 CO 16, ¶¶ 13-14; People v. Bossert, 722 P.2d 998, 1010 (Colo.
24
the plain language of Crim. P. 52(b), Colorado precedent, what I
believe to be a proper understanding of the applicability of the plain
error standard, and the view of all federal courts of appeals and the
clear majority of other state appellate courts.2 And when I apply
that test to this case, I conclude, contrary to the majority, that any
error isn’t obvious; consequently, I would affirm the district court’s
habitual criminal adjudication.
I. Defendant’s Challenge to His Prior Cultivation Conviction
¶ 44 Defendant’s argument that the district court erred in finding
that he had previously been convicted of a drug felony goes like
this:
1. In 1997, he was convicted of cultivation of marijuana, at
that time a felony in all circumstances. See § 18-18-
406(8), C.R.S. 1997.
1986); People v. Galang, 2016 COA 68, ¶ 11; People v. Gee, 2015
COA 151, ¶¶ 42-46.
2 Though defendant asserts in his opening brief that “it is not
necessary to preserve a claim of insufficiency of evidence,” in his
reply brief he says that if we conclude his claim is not preserved we
should, “at a minimum, review the contention under the plain error
standard.”
25
2. Sometime after his conviction, but before 2011, the
General Assembly changed the law regarding cultivation
of marijuana. So, in 2011 when he committed the
offenses charged in this case, cultivation was a felony
only if the defendant cultivated more than six plants;
otherwise, it was a misdemeanor. See
§ 18-18-406(7.5)(a), (b), C.R.S. 2011.
3. Section 18-1.3-801(3) provides that a drug law conviction
counts as a prior felony conviction for habitual criminal
purposes only if it would be a felony if committed in
Colorado at the time the new offense was committed.
4. The People were therefore required to prove that his prior
conviction involved more than six plants.
5. The People didn’t prove that his prior conviction involved
more than six plants.
6. The trial court therefore erred in finding that his 1997
conviction counted as a felony for habitual criminal
purposes and in calculating his sentence using that
conviction.
26
¶ 45 The linchpin of defendant’s argument is section 18-1.3-801(3).
If he’s right that it applies to his 1997 Colorado conviction, the
court erred. If he isn’t, the court didn’t err.
II. Analysis
A. Standard of Review
1. Two Inquiries: Was There an Error and Does the Error Require
Reversal?
¶ 46 In many criminal cases in which a defendant challenges the
sufficiency of the evidence for the first time on appeal, the parties
frame the issue of the applicable standard of review as a choice
between de novo review (the standard typically urged by the
defendant) and plain error review (the standard typically urged by
the People). But that’s a false choice because those two tests aren’t
alternatives to each other. This is so because de novo review and
plain error review apply to fundamentally different inquiries. The
former applies, sometimes, when determining whether there was an
error. The latter applies, sometimes, when determining whether an
error requires us to reverse.
¶ 47 Hagos v. People, 2012 CO 63, helps make the point. In that
case, the supreme court articulated the standards “that dictate
27
reversal of a conviction in criminal appeals,” id. at ¶ 8: structural
error, constitutional harmless error, harmless error, “[c]laims where
the effect on the conviction is constitutionally material to the claim
itself” (such as when the defendant claims ineffective assistance of
counsel), plain error, and cumulative error, id. at ¶¶ 9-14 & n.2.3
Notice that de novo review isn’t among them. Neither are clear error
and abuse of discretion, two other familiar standards of review.
Those omissions weren’t oversights. Those three standards apply to
the determination of whether there was an error, and they apply the
same regardless of whether the defendant preserved the claim of
error. They don’t apply to the determination of whether an error
requires reversal.4
¶ 48 Consider two hypotheticals.
3The court also included invited error, but I think that’s more
accurately characterized as a doctrine precluding review altogether.
See People v. Zapata, 779 P.2d 1307, 1309 (Colo. 1989).
4 My discussion assumes that the claim of error in a given case
wasn’t invited or waived. If either of those doctrines applies, we
won’t review the claim at all, under any standard. Hinojos-Mendoza
v. People, 169 P.3d 662, 668 (Colo. 2007) (waiver); Zapata, 779 P.2d
at 1309 (invited error).
28
¶ 49 First hypothetical: The defendant claims on appeal that the
court erred in admitting hearsay evidence in violation of the rule
against hearsay. If the defendant preserved the issue with a
contemporaneous objection, we’ll decide whether any error requires
reversal by applying the harmless error test. E.g., Nicholls v. People,
2017 CO 71, ¶ 17. If he didn’t, we’ll decide that question by
applying the plain error test. E.g., People v. Miranda, 2014 COA
102, ¶¶ 57-61, 69 (cert. granted in part Aug. 15, 2015). But in
either scenario we’ll determine whether the trial court erred by
asking whether the court abused its discretion. Nicholls, ¶ 17;
Miranda, ¶ 62. Only if the defendant can get over that hurdle will
the harmless or plain error test come into play.5
¶ 50 Second hypothetical: The defendant claims on appeal that the
court erred in admitting hearsay testimony in violation of his rights
under the Confrontation Clause. If the defendant preserved the
5 I recognize that every standard of reversal requires that there be
some error, so it can be said that determining error is the first step
of all such standards. Even so, the test for determining whether
there was an error is the same regardless of the standard of
reversal. I also recognize that sometimes the appellate court will
skip the error step and go right to whether the error was harmless,
or obvious, or affected the defendant’s substantial rights. But doing
so doesn’t affect the standard applicable to the error inquiry.
29
issue, we’ll decide whether any error requires reversal by applying
the constitutional harmless error test. E.g., Bernal v. People, 44
P.3d 184, 200 (Colo. 2002). If he didn’t, we’ll decide that question
by applying the plain error test. E.g., People v. Vigil, 127 P.3d 916,
929 (Colo. 2006). But in either scenario we’ll determine de novo
whether the trial court erred. Bernal, 44 P.3d at 198. Absent a
finding of any error, whether the constitutional harmless error or
the plain error test applies is irrelevant.
¶ 51 In sum, properly understood, a “standard of review” actually
has two parts — a “standard of error determination,” if you will, and
a “standard of reversal.” See United States v. Minners, 362 F. App’x
931, 937 (10th Cir. 2010) (recognizing the distinction between the
test for deciding whether there was an error and the “standard for
reversal”). Conflating the two, as parties and courts sometimes do,
not only creates confusion but risks deciding cases wrongly.
¶ 52 In the case before us, this understanding of standards of
review means that de novo review isn’t an option for our standard of
30
reversal.6 That leaves open the question of what our options are.
But before turning to that question, we need to determine the
applicable standard of error. After all, if there wasn’t an error, we
don’t have to apply a standard of reversal.
2. Standard of Error: De Novo
¶ 53 Defendant raises an insufficiency of the evidence challenge on
appeal, albeit not one of the usual variety.7 Ordinarily, a defendant
6It’s important to remember what “de novo review” means. It
means that we accord no deference to the trial court’s
determination of an issue, but decide the issue as if looking at it
anew. See Valdez v. People, 966 P.2d 587, 598 (Colo. 1998) (Scott,
J., concurring). So by its terms it’s a way of deciding whether the
district court decided an issue correctly. It says nothing about
what we do if we decide the trial court didn’t decide the issue
correctly.
7 When a defendant timely moved for a judgment of acquittal based
on insufficiency of the evidence, the “error” is the trial court’s denial
of that motion and the entry of the judgment of conviction. E.g.,
United States v. Milan, 494 F.3d 640, 643 (8th Cir. 2007)
(characterizing the alleged error as “allowing the case to go to the
jury”); Williams v. State, 543 N.E.2d 1128, 1129 (Ind. Ct. App. 1989)
(“[T]here was no reversible error in the court’s entering a judgment
of conviction.”); State v. Prince, Nos. ED 104539 & 104606, 2017
WL 3483660, *2-3 (Mo. Ct. App. 2017) (“[T]he trial court did not err
in entering judgment against Defendant.”); see also People v. Allaire,
843 P.2d 38, 40 (Colo. App. 1992) (framing the issue as whether
“the trial court erred in entering judgment of conviction”). When a
defendant fails to preserve the issue by appropriate timely motion,
the error is the trial court’s failure to sua sponte enter a judgment
31
challenging the sufficiency of the evidence straightforwardly argues
that the evidence presented at trial wasn’t sufficient to prove one or
more of the elements of the offense: there is no dispute as to the
meaning of the elements; the only dispute is whether the evidence
showed that the defendant’s conduct was within the scope of that
meaning.
¶ 54 But in this case, the parties dispute what must be proved; that
is, they dispute the meaning of one of the elements based on the
interpretation of statutes. Specifically, we must first decide whether
section 18-1.3-801(3) affects the meaning of “felony” in section 18-
1.3-801(2)(a)(I). That’s a question of statutory interpretation that
we, of course, review de novo. People v. Perez, 2016 CO 12, ¶ 8.
¶ 55 But if we agree with defendant’s interpretation, where do we go
from there? Some would say that we should go straight to the
usual sufficiency of the evidence test,8 decide whether the
of acquittal. E.g., United States v. Calhoun, 721 F.3d 596, 600 (8th
Cir. 2013); Monroe v. State, 652 A.2d 560, 562, 567 (Del. 1995);
Richardson v. United States, 276 A.2d 237, 238 (D.C. 1971).
8That test is “whether any rational trier of fact might accept the
evidence, taken as a whole and in the light most favorable to the
prosecution, as sufficient to support a finding of the accused’s guilt
32
prosecution proved the additional fact (the number of plants), and,
if we conclude that it did not, reverse without further analysis. For
the reasons discussed below, I would instead apply the plain error
test, asking whether the court’s error in failing to apply defendant’s
ad hoc interpretation of section 18-1.3-801(3) was obvious and, if
so, whether the error so undermined the fundamental fairness of
the proceeding as to cast serious doubt on the district court’s
habitual criminal finding. See Hagos, ¶ 14.9
3. Standard of Reversal: Plain Error Review Is the Only
Jurisprudentially Sound Option
¶ 56 Assuming that an unpreserved claim of error is reviewable at
all (neither invited nor waived), Crim. P. 52(b) expressly provides a
beyond a reasonable doubt.” People v. Sprouse, 983 P.2d 771, 777
(Colo. 1999). We review the record de novo to decide whether the
prosecution met that test. Dempsey v. People, 117 P.3d 800, 807
(Colo. 2005).
9 If an insufficiency claim is preserved, and the appellate court finds
error under the de novo test, the standard of reversal would be
constitutional harmless error because a conviction based on proof
insufficient to meet the beyond a reasonable doubt standard is a
due process violation. Jackson v. Virginia, 443 U.S. 307, 313-16
(1979). (As discussed below, the error doesn’t qualify as structural.)
It’s difficult (though perhaps not impossible) to imagine that the
People could ever show that the error was harmless beyond a
reasonable doubt.
33
standard of reversal: “Plain error or defects affecting substantial
rights may be noticed although they were not brought to the
attention of the court.” See also CRE 103(d). And Colorado case
law currently recognizes only one other potential standard —
structural error. Hagos, ¶¶ 10-14.10 (Though some judges on this
court have said that sufficiency of the evidence falls within its own
special category of automatic reversal, I reject that notion, for
10 Under federal law, even unpreserved claims of structural error
are subject to plain error review. In Johnson v. United States, 520
U.S. 461 (1997), the Supreme Court rejected an argument that an
alleged structural error was not subject to plain error review,
saying, “the seriousness of the error claimed does not remove
consideration of it from the ambit of [Fed. R. Civ. P. 52(b)],” and
holding that it had no authority to create an exception to the plain
error rule for alleged structural errors. Id. at 466; see, e.g., United
States v. Pennue, 770 F.3d 985, 989 (1st Cir. 2014) (unpreserved
claims of structural error are reviewed under the plain error
standard); United States v. Ramirez-Castillo, 748 F.3d 205, 215-16
& n.7 (7th Cir. 2014) (same); United States v. Turrietta, 696 F.3d
972, 976 n.9 (10th Cir. 2012) (same); United States v. Robinson, 275
F.3d 371, 383 n.4 (4th Cir. 2001) (same). True, the Colorado
Supreme Court has held that structural errors aren’t amenable to
plain error review. Bogdanov v. People, 941 P.2d 247, 253 (Colo.),
modified, 955 P.2d 997 (Colo. 1997). But neither of the Supreme
Court cases the court cited for that proposition in Bogdanov —
Sullivan v. Louisiana, 508 U.S. 275 (1993), and Arizona v.
Fulminante, 499 U.S. 279 (1991) — says that. They hold that
harmless error analysis doesn’t apply to structural error. The Court
in Johnson made clear that plain error analysis can apply to alleged
structural errors.
34
reasons I’ll go into in some detail later. For now I note that fairly
recently the supreme court made clear that there is no such thing
as automatic reversal outside of the structural error context. People
v. Novotny, 2014 CO 18, ¶¶ 17-21 (also noting that the structural
error category has been substantially narrowed in the last few
decades). And the supreme court has also clearly held that all trial
errors (that is, nonstructural errors) are reviewable only for plain
error if not preserved. Hagos, ¶ 14; People v. Miller, 113 P.3d 743,
748-50 (Colo. 2005).)
¶ 57 So which applies — structural error or plain error — when a
defendant challenges the sufficiency of the evidence for the first
time on appeal? At least under the current state of the law,
structural error isn’t the answer. I’m not aware of any Colorado or
federal appellate case categorizing insufficiency of the evidence as
structural error. When the Colorado and United States Supreme
Courts have identified the types of errors qualifying as structural,
they haven’t listed insufficiency of the evidence among them. E.g.,
Neder v. United States, 527 U.S. 1, 8 (1999); Hagos, ¶ 10; Krutsinger
v. People, 219 P.3d 1054, 1058-59 n.1 (Colo. 2009). And, it seems
to me, for good reason. Structural errors are limited to those errors
35
that affect the framework within which the trial proceeds — that is,
errors that infect the entire trial process and necessarily render a
trial fundamentally unfair. See Novotny, ¶ 21; People v. Flockhart,
2013 CO 42, ¶ 17. A claim of insufficiency of the evidence doesn’t
challenge the “framework” of the trial or even the process by which
guilt is decided.
¶ 58 Maybe the Colorado Supreme Court or the United States
Supreme Court will someday decide that insufficiency of the
evidence is a structural error, but neither has yet done so. And in
light of the limitations of the meaning of structural error and the
fact that insufficiency of the evidence claims have been a staple of
criminal law jurisprudence for centuries, I see no reason to
recognize such a claim as a new type of structural error.
¶ 59 This leaves us then with plain error. We’re in good company.
The federal appellate courts uniformly apply the plain error
standard to unpreserved insufficiency of the evidence claims. E.g.,
United States v. King, 735 F.3d 1098, 1106 (9th Cir. 2013); United
States v. DeChristopher, 695 F.3d 1082, 1091 (10th Cir. 2012);
United States v. Frazier, 595 F.3d 304, 306 (6th Cir. 2010); United
States v. Wallace, 515 F.3d 327, 331-32 (4th Cir. 2008); United
36
States v. Goode, 483 F.3d 676, 680-81 (10th Cir. 2007); United
States v. Allen, 390 F.3d 944, 947 (7th Cir. 2004); United States v.
Spinner, 152 F.3d 950, 955 (D.C. Cir. 1998). And they often do so
in a quite demanding way, requiring the defendant to show that
there has been a manifest, or clear and gross, miscarriage of
justice. E.g., United States v. Chong Lam, 677 F.3d 190, 200 & n.10
(4th Cir. 2012); Frazier, 595 F.3d at 306; United States v. Luciano,
329 F.3d 1, 5 (1st Cir. 2003); United States v. Carr, 5 F.3d 986, 991
(6th Cir. 1993); United States v. Curtis, 568 F.2d 643, 647 (9th Cir.
1978); see also United States v. Delgado, 672 F.3d 320, 330-31 (5th
Cir. 2012) (en banc) (explaining that the Fifth Circuit’s miscarriage
of justice test is merely an application of the plain error test). I
haven’t found any federal appellate decision applying structural
error in this context; all such decisions review unpreserved
sufficiency claims, if at all, for plain error. See 2A Charles Alan
Wright & Peter J. Henning, Federal Practice & Procedure § 469, at
388-93 (4th ed. 2009) (so summarizing federal law on the issue).
¶ 60 And lest one think that this approach is unique to the federal
system, it bears mentioning that the clear majority of state
appellate courts also apply plain error review to unpreserved
37
insufficiency claims. See, e.g., Swan v. State, 820 A.2d 342, 358
n.45 (Del. 2003); State v. Thompson, 507 N.W.2d 253, 270 (Neb.
1993); State v. Houghton, 126 A.3d 312, 315-16 (N.H. 2015); State
v. Knowels, 643 N.W.2d 20, 21-23 (N.D. 2002); State v. Serrano,
324 P.3d 1274, 1279-80 (Or. 2014); State v. Holgate, 10 P.3d 346,
350-51 (Utah 2000). But see, e.g., Garay v. State, 165 P.3d 99, 101
n.1 (Wyo. 2007) (declining to apply plain error review and
apparently holding that reversal is always required if the evidence is
insufficient).
¶ 61 This brings me to People v. McCoy, 2015 COA 76M (cert.
granted in part Oct. 3, 2016), in which a majority of the division
attempted to justify a special automatic reversal exception to plain
error review for insufficiency claims.11 To get there, the majority
reasoned merely that because an insufficiency claim is reviewable
on appeal even if not raised below, plain error review doesn’t apply.
But in so reasoning, the majority misapprehended how a standard
of reversal is determined. The fact an error wasn’t invited or
11 The McCoy majority didn’t assert that the court’s error in failing
to sua sponte enter a judgment of acquittal constituted structural
error.
38
waived, and therefore can be raised on appeal, doesn’t dictate the
standard of reversal. That standard is dictated by (1) whether the
issue is constitutional; (2) if it is, the nature of the constitutional
violation; and (3) whether the issue is preserved. See Hagos, ¶¶ 9-
14.
¶ 62 Given that other divisions of this court have relied on McCoy, a
closer examination of its rationale is warranted. Judge Webb did
much of that work in his special concurrence in that case, McCoy,
¶¶ 68-107, but I think there’s a bit more to be said.
¶ 63 The McCoy majority first relied on Morse v. People, 168 Colo.
494, 452 P.2d 3 (1969), which it characterized as reviewing an
unpreserved insufficiency of the evidence claim without applying
plain error. See McCoy, ¶¶ 11-13. That’s a misreading of the case.
The Morse court noted that the defendant had raised several claims
of error that he hadn’t preserved at trial or in his motion for a new
trial. The court said that, “[s]uch being the posture of these various
other matters,” it would “elect not to resolve — or attempt to
resolve” any of them, “save one,” because the record didn’t permit it
to do so in an “intelligent” manner. 168 Colo. at 497, 452 P.2d at 5
39
(emphasis added).12 The one unpreserved claim of error it
“elect[ed]” to review was an insufficiency of the evidence claim. Id.
In justifying its treatment of the unpreserved claims, the court said,
“[i]n support of our determination of this phase of the controversy
see R.C.P. Colo. 37(b) . . . .”13 Id. At that time, Rule 37(b) read that
the appellate court wouldn’t consider claims the defendant had
failed to present in a motion for a new trial “except that plain error
or defects affecting substantial rights may be noted although they
were not brought to the attention of the trial court.” Crim. P. 37(b)
(1963). So in “elect[ing]” to review the insufficiency claim under the
then-applicable plain error rule, the court applied plain error
12 In saying that the record was insufficient to allow it to
intelligently attempt to resolve the other unpreserved issues, the
court plainly signaled that had the record been sufficient on those
issues, it could have reviewed them for plain error under then Crim.
P. 37(b), just as it was doing for the insufficiency claim as to which
there was an adequate record. Had the failure to preserve the other
issues itself been enough to preclude all review, the court could’ve
simply said that. But it didn’t. The only logical conclusion is that
the Morse court viewed the insufficiency claim, but not the other
unpreserved claims, as amenable to plain error review because of
the state of the record.
13The court also cited three cases in which it had declined to review
unpreserved claims of error.
40
review.14 Morse, 168 Colo. at 497, 452 P.2d at 5. (The court ruled
that the evidence was sufficient, so it went no farther.) To the
extent, then, that Morse has anything to say about this issue, it
actually supports the notion that plain error review applies to
unpreserved insufficiency claims.
¶ 64 In any event, I think it was inadvisable for the McCoy majority
to rely on a perceived inference (and, in my view, an incorrect one at
that) from an almost fifty-year-old decision. A lot of water has gone
under the bridge in the interim; our understanding and application
of standards of review have changed a great deal. See Novotny,
¶¶ 17-22. In particular, we now have Crim. P. 52(b), and the
supreme court has held that Colorado appellate courts will consider
14The supreme court’s citation of and reliance on former Crim. P.
37(b) to distinguish between unpreserved errors that it would not
review and a claim of error that it would consider for plain error was
consistent with its approach in numerous other cases of the era.
See, e.g., Phillips v. People, 170 Colo. 520, 532-33, 462 P.2d 594,
600 (1969), overruled on other grounds by People v. Helm, 633 P.2d
1071 (Colo. 1981); Falgout v. People, 170 Colo. 32, 45, 459 P.2d
572, 579 (1969); Morehead v. People, 167 Colo. 287, 291, 447 P.2d
215, 217 (1968); Moore v. People, 164 Colo. 222, 230-32, 434 P.2d
132, 136-37 (1967); Marshall v. People, 160 Colo. 323, 326-27, 417
P.2d 491, 493 (1966); Moreno v. People, 156 Colo. 503, 506, 400
P.2d 899, 900 (1965); Peterson v. People, 153 Colo. 23, 27-28, 384
P.2d 460, 462 (1963).
41
claims of trial error (as opposed to structural error), even if of a
constitutional nature, “only under the plain error standard.” Miller,
113 P.3d at 749 (emphasis added) (citing Griego v. People, 19 P.3d
1, 8 (Colo. 2001)); see also Reyna-Abarca v. People, 2017 CO 15,
¶ 37 (plain error review applies to unpreserved double jeopardy
claims; Crim. P. 52(b) “does not distinguish between constitutional
and nonconstitutional errors”); People v. Davis, 2015 CO 36M,
¶¶ 32, 37-41 (unanimously applying plain error review to a double
jeopardy issue that turned, in part, on the sufficiency of the
evidence); Martinez v. People, 2015 CO 16, ¶¶ 12-13 (constitutional
errors are forfeited by lack of timely objection); Hagos, ¶ 14 (“[W]e
review all other errors, constitutional and nonconstitutional, that
were not preserved by objection for plain error.”) (emphasis
added).15
¶ 65 The McCoy majority also cited two 2012 decisions from
divisions of this court for the proposition that “a defendant need not
preserve a sufficiency of the evidence claim by moving for a
judgment of acquittal.” McCoy, ¶ 14. It’s true that, in the first of
15The supreme court’s pronouncements in these cases were very
broad, allowing of no exceptions.
42
those cases, People v. Randell, 2012 COA 108, the division declined
to apply plain error review to an unpreserved insufficiency of the
evidence claim. Id. at ¶ 31. But it did so because “[a] defendant
may challenge the sufficiency of the evidence on appeal without
moving for a judgment of acquittal in the trial court.” Id. at ¶ 30.
While that is so, it’s no reason for rejecting plain error. Again, the
fact a claim is reviewable says nothing about what standard of
reversal applies.
¶ 66 In the other case, People v. Garcia, 2012 COA 79, the division
rejected the People’s argument that the defendant hadn’t preserved
his sufficiency claim for the reason that a defendant may challenge
the sufficiency of the evidence on appeal even though he didn’t
move for a judgment of acquittal in the trial court. Id. at ¶ 35. So
that division, like the majority in McCoy and the division in Randell,
also erroneously equated reviewability with preservation.
¶ 67 The McCoy majority distinguished other court of appeals
decisions applying plain error review — People v. Harris, 633 P.2d
1095 (Colo. App. 1981), and People v. Rice, 40 Colo. App. 357, 579
P.2d 647 (1978) — on the basis they’d been decided under a former
version of Crim. P. 33(a) that required a defendant to move for a
43
new trial to preserve issues for review. As the majority pointed out,
under the current version of Crim. P. 33(a), the filing of a motion for
a new trial is optional and a defendant “need not raise all the issues
it intends to raise on appeal in [a motion for a new trial] to preserve
them for appellate review.” McCoy, ¶ 19 (quoting Crim. P. 33(a)).
¶ 68 But the majority misunderstood the effect of this change.
Under the prior version of Crim. P. 33(a), a defendant had to file a
motion for a new trial to preserve any issue for appeal, including
issues that the defendant had otherwise timely and clearly raised.
In other words, the defendant had to re-raise an issue in a new trial
motion to preserve it. The new version of the rule does away with
that requirement, but it doesn’t do away with the requirement that
a defendant must clearly raise an issue in the trial court at the
appropriate time to preserve it for appellate review. So the change
to Crim. P. 33(a) in no way supports the McCoy majority’s
conclusion that unpreserved sufficiency claims aren’t subject to
plain error review.16
16If the McCoy majority’s characterization of Crim. P. 33(a) is to be
taken at face value, a defendant wouldn’t be required to timely and
properly raise any issue in the trial court to preserve it for appellate
44
¶ 69 Lastly, the McCoy majority attempted to distinguish federal
authority — which it acknowledged uniformly applies plain error
review to unpreserved insufficiency claims — by asserting (in a
manner that only begged the question) that federal courts require a
party to move for a judgment of acquittal on particular insufficiency
grounds under Fed. R. Crim. P. 29 to preserve such grounds for
appellate review, while Colorado courts purportedly don’t require
similar action under Crim. P. 29. McCoy, ¶¶ 23-24. But the federal
cases merely point out that Fed. R. Crim. P. 29 governs the process
for raising an insufficiency claim during and after trial. That’s true
of Crim. P. 29 as well. So Crim. P. 29, like Fed. R. Crim. P. 29, is
the vehicle through which a defendant ordinarily preserves an
insufficiency claim. In this sense, Crim. P. 29 doesn’t differ from
other rules governing the time and method for raising, and therefore
review. After all, the rule doesn’t speak in terms of sufficiency of
the evidence specifically, but of issues generally. Such a reading of
the rule would be clearly contrary to long-standing and controlling
precedent, not to mention Crim. P. 52(b).
45
preserving, an issue, as Judge Webb noted in his special
concurrence. McCoy, ¶¶ 84-88.17
¶ 70 The McCoy majority gave no reason for applying Crim. P. 29
differently than Fed. R. Crim. P. 29. Given that the rules are, at
least in relevant part, substantially identical, and our supreme
court is strongly inclined to interpret comparable Colorado and
federal rules similarly, see, e.g., Warne v. Hall, 2016 CO 50, ¶ 12
(rules of civil procedure); Crumb v. People, 230 P.3d 726, 731 n.5
(Colo. 2010) (rules of criminal procedure); People v. Melendez, 102
P.3d 315, 319 (Colo. 2004) (rules of evidence), I see no reason to
view them as meaning two different things.
17 Other rules providing procedures and deadlines for requesting
relief include Crim. P. 5(a)(4) and 7(h) (requesting a preliminary
hearing), Crim. P. 7(g) (moving for a bill of particulars), Crim. P.
8(a)(1) (mandatory joinder of offenses), Crim. P. 11(e)(1) (pleading
insanity defense), Crim. P. 12(b)(2) and (3) (raising certain defenses
and objections), Crim. P. 14 (severance of charges or defendants),
Crim. P. 15(a) (requesting depositions), Crim. P. 21 and 22 (change
of venue or judge), Crim. P. 23 (requesting trial by jury), Crim P.
24(b) (challenges to the jurors for cause) Crim. P. 24(c) (challenges
to the jury pool), Crim. P. 30 (tendering and objecting to jury
instructions), and Crim. P. 31 (polling the jury). A failure to follow
these rules has consequences for reviewability and the standard of
review on appeal. Why a failure to follow Crim. P. 29 should have
no consequences, the McCoy majority didn’t really say.
46
¶ 71 In attempting to distinguish the federal cases, the McCoy
majority also overlooked the fact that those cases ultimately rely on
the policies underlying the principle that a party must timely and
clearly raise a claim of error in the trial court to preserve it for
appellate review. See, e.g., Delgado, 672 F.3d at 331-32 (discussing
the policies supporting plain error review of unpreserved claims in a
sufficiency case). Colorado authority recognizes the purposes
served by the plain error rule no less so than the federal cases.
E.g., Hagos, ¶¶ 18, 23; People v. Lacallo, 2014 COA 78, ¶¶ 15-16.
¶ 72 It’s no answer to all this to say, as the McCoy majority did,
that proof beyond a reasonable doubt is required by “the Due
Process Clause of the Fourteenth Amendment.” McCoy, ¶ 7; see
also id. at ¶ 35; Lacallo, ¶ 63 (Román, J., concurring in part and
dissenting in part).18 After all, under binding Colorado precedent,
18 Those adhering to the automatic reversal approach may be
motivated by assuring that an actually innocent person won’t stand
convicted. But the assumption underlying that motivation — that if
proof of guilt is insufficient, the defendant is necessarily actually
innocent — is incorrect. A finding of not guilty — that is, a finding
that the prosecution didn’t meet its burden of proof — isn’t a
finding of actual innocence. People v. Allee, 740 P.2d 1, 6-7 (Colo.
1987); Roberts v. People, 103 Colo. 250, 261, 87 P.2d 251, 256
(1938). Rather, conviction on a failure of sufficient proof is a due
47
all unpreserved constitutional errors (that aren’t structural errors)
are reviewable only for plain error. Indeed, both the Colorado
Supreme Court and divisions of this court routinely review
unpreserved due process claims for plain error, including claims
that, because of some instructional defect or misstatement of the
law, the prosecution didn’t meet its burden of proof. E.g., Miller,
113 P.3d at 747-50; People v. Dunaway, 88 P.3d 619, 624-30 (Colo.
2004); Walker v. People, 932 P.2d 303, 310-11 (Colo. 1997); People
v. Clark, 2015 COA 44, ¶¶ 162-177; People v. Devorss, 277 P.3d
829, 834-35 (Colo. App. 2011); People v. Dunlap, 124 P.3d 780,
805-06 (Colo. App. 2004); see also Griego, 19 P.3d at 8 (“[W]hen a
trial court misinstructs the jury on an element of an offense, either
by omitting or misdescribing that element, that error is subject to
constitutional harmless or plain error analysis.”). And other courts
have held specifically that applying plain error review to
unpreserved insufficiency claims doesn’t violate the Due Process
Clause. E.g., Delgado, 672 F.3d at 331; cf. Carlisle v. United States,
process violation — a procedural failure. In the event an actually
innocent defendant stands convicted, the remedy is habeas corpus
(or perhaps a Crim. P. 35(c) motion based on ineffective assistance
of counsel or some other theory).
48
517 U.S. 416, 429 (1996) (it’s not a denial of due process to require
a defendant to timely move for a judgment of acquittal under Fed.
R. Crim. P. 29; a trial court can’t enter such a judgment outside the
time permitted by the rule even if the defendant claims the evidence
was insufficient).
¶ 73 Given all this, I find McCoy’s reasoning unpersuasive. Rather,
I conclude that applying plain error review in this context is
consistent with the plain language of Crim. P. 52(b), the purposes
served by the plain error rule, and precedent.
B. This Case: Any Error Wasn’t Plain
¶ 74 When an unpreserved insufficiency claim is of the usual
variety, review for plain error will, in the vast majority of cases,
result in reversal if the evidence is insufficient: the insufficiency will
be sufficiently obvious and the entry of judgment based on
insufficient evidence will of course affect a defendant’s substantial
rights. But see Delgado, 672 F.3d at 331-32 n.11 (explaining that
the obviousness prong of plain error review may dictate affirmance
even if the appellate court concludes that the evidence is
insufficient where insufficiency is a “close call[]”). But defendant
doesn’t present the usual insufficiency claim. Instead, he presents
49
a claim based on an interpretation of a statutory subsection that no
Colorado appellate decision has yet addressed.
¶ 75 I’m willing to accept for now the majority’s ultimate conclusion
that a prior Colorado felony conviction for cultivation of marijuana
now counts as a prior felony conviction for habitual criminal
purposes only if it involved more than six plants. That conclusion
depends on the correctness of defendant’s argument that section
18-1.3-801(3) applies not only to out-of-state drug convictions but
also to Colorado drug convictions. While, as the majority
concludes, defendant may be correct on that score, contrary to the
majority, I’m not convinced that he is obviously so, for several
reasons.
¶ 76 First, subsection (3) has been on the books for more than forty
years, and despite Colorado’s drug laws having changed many
times over that period, this is the first case of which we are aware in
which a party has raised it.19 And this is so notwithstanding what
must have been many thousands of drug convictions in that time.
19The statute to which defendant pleaded guilty to violating in 1997
was changed in relevant part in 2010. Ch. 259, sec. 6, § 18-18-
406, 2010 Colo. Sess. Laws 1169.
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That defendant’s argument seems never to have occurred to any
other defendant screams “not obvious.”
¶ 77 Second, though the majority purports to rely on the plain
language of subsection (3), that subsection is preceded by several
subsections that use the same “if committed within this state”
language only in conjunction with convictions under the laws of
other states or the United States. § 18-1.3-801(1)(b)(II), (1.5),
(2)(a)(I). Those subsections predate the General Assembly’s 1976
addition of subsection (3), and the General Assembly may well have
assumed in enacting subsection (3) that in using such language it
was using it in the same limited way that it’s used in those other
subsections.
¶ 78 Third, the General Assembly may well have intended such an
extrajurisdictional limitation to give full credit to the judgments of
prior Colorado legislatures as to what should be regarded as a
felony.
¶ 79 Fourth, defendant’s claim required the district court to know
that the cultivation statute had been changed, and how, and that
this change brought into play a subsection of the habitual criminal
51
statute that no one had mentioned. I don’t think we should expect
judges to be omniscient.
¶ 80 Under these circumstances, I don’t think it can fairly be said
that the error was “so clear-cut, so obvious, that [the] trial judge
should [have] be[en] able to avoid it without benefit of objection.”
Lacallo, ¶ 22 (quoting People v. Pollard, 2013 COA 31, ¶ 39); see
also DeChristopher, 695 F.3d at 1091-92 (discussing obviousness of
an issue of statutory interpretation); Lacallo, ¶¶ 26-32 (same);
People v. Heywood, 2014 COA 99, ¶ 36 (same). Because
defendant’s claim of error fails the obviousness requirement of the
plain error test, I would affirm the district court’s habitual criminal
adjudication on this count (subject to the determination of
excusable neglect on remand).20
20Were I to agree with the majority’s decision to reverse on this
count, I would also agree with its decision to remand for a new
sentencing hearing in which the prosecution would have the
opportunity to present evidence that defendant’s prior cultivation
conviction involved more than six plants. See Monge v. California,
524 U.S. 721, 734 (1998) (double jeopardy doesn’t preclude retrial
on a prior conviction allegation in noncapital sentencing cases);
People v. Porter, 2015 CO 34, ¶ 29 (same).
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