People v. Tillery

Judge BERNARD

specially concurring.

I. Introduction

"There would seem to be no error to which plain error review would not apply. ..." 8B Charles Alan Wright, Nancy J. King & Susan R. Klein, Federal Practice and Procedure § 856, at 511 (Bd ed.2004). This quotation represents the view of eminent commentators who were analyzing Fed. R.Crim.P. 52(b). Because Colorado's counterpart, Crim. P. 52(b), is identical, see People v. O'Connell, 134 P.3d 460, 464 (Colo.App.2005), my colleagues in the majority clearly have a reasoned and principled basis for relying on federal authority, such as United States v. Lewis, 492 F.3d 1219, 1222 (11th Cir.2007), to reach the conclusion that we should review two unpreserved errors in this case.

However, I am deeply troubled by three classes of questions that I respectfully suggest are inherently raised by the majority's analysis. First, there are doctrinal issues. Are constitutional errors that occur in sentencing, which are unconnected to the propriety of a plea or verdict of guilt, trial errors? If they are not trial errors, are they subject to plain error analysis? If they are subject to plain error analysis, are the kinds of errors that are discussed here subject to auto *53 matic reversal if found to exist? If so, are they more akin to structural errors, which are not amenable to plain error analysis?

Second, because I believe that Colorado has, historically, approached plain error analysis somewhat differently than the federal courts, is plain error review inapposite here because the unpreserved errors at issue are of the kind that we do not review for plain error?

Third, what are the consequences of expanding plain error review in these circumstances? Are the plain error standards employed in Colorado different from those employed in federal cases? What effect will the expansion of plain error review have on federal habeas corpus review of Colorado convictions? Will the expansion of plain error review increase the number of cases reviewed for plain error, and what effect will the expansion of review have on the principle that trials and sentencing hearings, not appeals, are the "main event" in the criminal justice process?

I wish to make plain that this is my only divergence from the majority's analysis in this case. I concur with the result and with the rationale of the rest of the opinion. My sole purpose in writing separately is to express my respectful disagreement with the majority's decision in section IV to analyze two unpreserved errors.

IL Trial Errors, Structural Errors, and the Standard of Review

The general rule is that a party must raise a contemporaneous objection before an error will be considered on appellate review. People v. Wilson, 838 P.2d 284, 289 (Colo.1992). Crim. P. 52(b) modifies this general rule by allowing appellate courts to address particularly damaging errors. Id. The rule states that "[pllain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."

Constitutional errors that occur during a criminal case fall into two classifications: trial errors and structural errors. Depending upon whether a timely objection was offered, trial errors are subjected to either harmless error or plain error analysis. Hodges v. People, 158 P.3d 922, 927 (Colo.2007) (plain error analysis is used for trial errors); Griego v. People, 19 P.3d 1, 7 (Colo.2001). Onee identified, structural errors, which are rare, are not amenable to harmless or plain error review. Rather, because they are intimately related to the fundamental framework of a trial, structural errors require that a convietion be reversed. Hodges, 158 P.3d at 927 ; Blecha v. People, 962 P.2d 931, 942 (Colo.1998).

Trial errors are those that occur "during the presentation of the case to the jury, and . may therefore be quantitatively assessed in the context of other evidence." Blecha, 962 P.2d at 942 (quoting Arizona v. Fulminante, 499 U.S. 279, 307-08 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991)). When assessing a preserved constitutional trial error for harmlessness, we ask whether "the guilty verdict actually rendered in this trial was surely unattributable to the error." Blecha, 962 P.2d at 942 (quoting Sullivan v. Louisiana, 508 U.S. 275, 279 , 118 S.Ct. 2078 , 124 L.Ed.2d 182 (1993)). When determining whether an unpreserved constitutional error was plain, the question we ask, as indicated above, involves evaluating whether the error undermined the trial's fundamental fairness to the point that we seriously doubt the reliability of the conviction. People v. Miller, 113 P.3d 748 , 750 (Colo.2005).

It is beyond cavil that, with the exception of death penalty cases, the task of sentencing falls to the trial court after guilt has been determined by either plea or trial. See generally §§ 16-11-102, 801, 18-1.8-101 to - 1012, C.R.S.2009; Crim. P. 82. Because many sentencing errors have no relationship to the presentation of the case to the jury, the trial's fundamental fairness, or the relationship of the guilty verdict to the sentencing error, the foregoing authority prompts me to raise the question whether either harmless error or plain error review applies to sentencing proceedings in which such sentencing errors allegedly oceur. In other words, are such sentencing errors trial errors?

It may be argued that this question is immaterial because Crim. P. 52(b) is so broad *54 that trial error is merely a subset of the possible errors that can be noticed under the rule. This conclusion has not yet been reached by our supreme court. Getting to that point would, I suggest, face some challenges in light of the court's consistent statement that plain error applies to trial errors. E.g., Hodges, 158 P.3d at 927 .

However, even assuming that trial error is merely a subset of the error that can be reached under Crim. P. 52(b), we are, I respectfully submit, still left without a standard of review for assessing sentencing errors that do not involve the propriety of the guilty verdict. Harmless error is inapposite because, for such errors, we are unconcerned with the jury verdict. Plain error does not seem to apply because we have no interest in the trial's fundamental fairness.

My research indicates that neither the United States Supreme Court nor our supreme court has directly confronted this issue. However, I would respectfully submit that Medina v. People, 163 P.3d 1136, 1141 (Colo.2007), comes the closest to discussing the dichotomy I analyze here. On one hand, it provides aid and comfort to the argument that trial errors include sentencing errors because it states, in dicta, that trial error includes constitutional error that occurs "at both trial and sentencing." Id. at 1141 . This statement was made based on a citation to a federal case, United States v. Stevens, 223 F.3d 239, 244 (3d Cir.2000), which made the identical statement, citing, in turn, to Fulminante. In Fuiminante, the error in sentencing was inextricably interwoven with an error that occurred at trial.

On the other hand, Medina provides support for my position, too, because it states that the basis for deciding whether to apply harmless or structural error depends upon "the effect the error had on the guilty verdict in the case." Medina, 163 P.3d at 1141 . Because the trial court there entered a conviction different from the one returned by the jury, the error was structural, but because the error was "confined to the sentencing proceedings [it did] not affect the jury's guilty verdict." Id. at 1141-42 . I therefore contend that, if the basis for deciding whether to employ harmless error or structural error depends upon the error's effect on the guilty verdict, then, by a parity of reasoning, the basis for deciding whether to use plain error likewise depends upon the effect of the error on the guilty verdict.

I also recognize that other divisions of this court have assumed that plain error review applies to sentencing proceedings, but have not engaged in an analysis of the questions I raise here. See, e.g., People v. Banark, 155 P.3d 609, 611 (Colo.App.2007); People v. Elie, 148 P.3d 359, 366 (Colo.App.2006). However, because many of these cases, including Banark and Elie, involve claims based on error arising from Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 490 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), I contend that these claims are inseparably tied to an error that occurred at trial. See United States v. Vazquez, 271 F.3d 98, 101-02 (3d Cir.2001) (Apprendi error consists of a trial error-"failing to submit an element of the offense to the jury"-and a sentencing error-"imposing a sentence beyond the prescribed statutory maximum").

Even assuming, for purposes of argument, that I found sufficient precedent to extend plain error review to sentencing errors unconnected to the propriety of the guilty verdict, I would remain stymied in this case. It appears to me that, onee an appellate court concludes that one of the unpreserved errors the majority analyzes in section IV has occurred, the remedy is automatic. See § 18-1-408(1)(a), (a defendant may not be convicted of more than one offense if "one offense is included in the other"); People v. Simon, 219 P.3d 789, 793 (Colo.App.2009) (consecutive sentences vacated and case remanded for resentencing); People v. Mintz, 165 P.3d 829, 835-36 (Colo.App.2007) (because court could not determine from an analysis of the evidence and the counts whether there was more than one offense, division vacated sentence, and remanded for resentencing based on merging of convictions); People v. Delgado-Elizarras, 131 P.3d 1110, 1113 (Colo.App.2005) (because conviction of a greater offense precludes conviction of a lesser offense based on the same *55 conduct, division vacated conviction for lesser offense).

If such errors, once identified, require an automatic remedy, the question must be raised whether the proper standard of review for them is structural error, not plain error. Although I am not prepared to conclude now, or necessarily in the future, that the errors at issue here are structural, they seem to share with structural errors the attribute of an automatic remedy. If so, then plain error analysis is inapposite. See Griego, 19 P.3d at 7 (structural errors are not amenable to plain error review); Bogdanov v. People, 941 P.2d 247, 252-53 (Colo.1997) ("Structural errors are not amenable to either a harmless error or a plain error analysis because such errors affect 'the framework within which the trial proceeds, and are not errors in the trial process itself" (quoting Fulminante, 499 U.S. at 310 , 111 S.Ct. 1246 )), overruled on other grounds by Griego, 19 P.3d at 7-8 ; People v. Jimenez, 217 P.3d 841, 868 (Colo.App.2008) ("If an error is structural, it is not susceptible of harmless error or plain error review." (citing People v. Dunlap, 975 P.2d 723, 736-87 (Colo.1999), and Bogdanov); State v. Cruz, 122 P.3d 543, 549 (Utah 2005) (because they affect the very framework of the trial, structural errors are not subject to plain error analysis); but see Johnson v. United States, 520 U.S. 461, 466 , 117 S.Ct. 1544 , 137 L.Ed.2d 718 (1997) (indicating that structural errors are subject to plain error review when the error does not "seriously affect[ ] the fairness, integrity, or public reputation of judicial proceedings" (quoting United States v. Atkinson, 297 U.S. 157, 160 , 56 S.Ct. 391 , 80 L.Ed. 555 (1936)); United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40 , 48 n. 5 (1st Cir.2004) (plain error analysis applies to structural errors).

There is no need to decide whether the error is obvious or substantial; whether the trial's fundamental fairness was undermined; or whether the undermining was so significant that we doubt the conviction's reliability. We simply impose the remedy.

III. Colorado's History

In People v. Cagle, 751 P.2d 614, 619 (Colo.1988), our supreme court stated that "IJt is axiomatic that this court will not consider constitutional issues raised for the first time on appeal." That statement was made in the course of analyzing whether a defendant had preserved for appeal an argument that a statute was unconstitutional. Thus, Cagle is, at the very least, an expression of the unexceptional and well-established idea that the constitutionality of statutes will not be addressed for the first time on appeal. See People v. Lesney, 855 P.2d 1364, 1366 (Colo.1993). This includes allegations that statutes are unconstitutional as applied. People v. Veren, 140 P.3d 131, 140 (Colo.App.2005). Therefore, it is my belief that plain error review in Colorado does not encompass un-preserved constitutional attacks on statutes.

Further, the supreme court has cited Cagle as a basis for concluding that a defendant "may only raise the improper denial of his constitutional right to a speedy trial on appeal if he raised it first in the trial court." People v. McMurtry, 122 P.3d 237, 241 (Colo.2005); accord People v. Scialabba, 55 P.3d 207, 209-10 (Colo.App.2002). In addition to the cases cited by the majority in which divisions of this court have relied upon Cagle to conclude that double jeopardy claims should not be considered for the first time on appeal, other divisions have cited Cagle as the basis for declining to review unpreserved allegations that:

e The defendant's due process rights were violated when he was denied an eviden-tiary concerning his termination from a community corrections facility. People v. Kitsmiller, 74 P.3d 376, 378 (Colo.App.2002);

* The defendant should be given a remand for an extended proportionality review. People v. Collie, 995 P.2d 765, 775 (Colo.App.1999); and

@The Colorado Constitution provides broader protection in a particular area than the Fourth Amendment. People v. Oynes, 920 P.2d 880, 883 (Colo.App.1996).

It is, therefore, clear to me that, in Colorado at least, there are some unpreserved constitutional errors to which plain error review does not apply. Thus, relying on Lewis, a federal case that appears to reflect the *56 broader proposition that "[t}here would seem to be no error to which plain error review would not apply," would not be consistent with Colorado's approach.

Further, the double jeopardy issues the majority analyzes here are substantially the same as unpreserved unconstitutional-as-applied arguments another division refused to consider on direct appeal, based on a full trial record. People v. Cooper, 205 P.3d 475, 47-78 (Colo.App.2008). As Verem points out, "it is imperative that the trial court make some factual record that indicates what causes the statute to be unconstitutional as applied." 140 P.3d at 140 . I can see no principled reason for requiring a trial court to make a factual record to demonstrate to us why a statute has been unconstitutionally applied, but obviating that requirement when the issue is, as here, whether a defendant's sentence violates double jeopardy principles.

IV. Consequences of Expanding Plain Error Review

A. Unintended Consequences

1. Definition of Plain Error

The plain error review conducted by federal courts, such as in Lewis, may be palpably different from the plain error review standard that Colorado employs. In Colorado, to be plain error, the error must be obvious and substantial. We ask whether the error "so undermined the fundamental fairness of the trial itself ... as to cast serious doubt on the reliability of the judgment of conviction." Miller, 118 P.3d at 750 (quoting People v. Sepulveda, 65 P.3d 1002, 1006 (Colo.2003)).

The federal standard is, at least on its face, different. It has four parts, as explained in United States v. Olano, 507 U.S. 725, 732-37 , 113 S.Ct. 1770 , 122 L.Ed.2d 508 (1993). First, was there error? Second, was the error plain? Third, did the error affect substantial rights? Fourth, because review under Fed.R.Crim.P. 52(b) is permissive, not mandatory, the United States Supreme Court has stated that a plain error should only be corrected when it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. at 736, 113 S.Ct. 1770 (quoting Atkinson, 297 U.S. at 160 , 56 S.Ct. 391 ). The sorts of errors that justify relief in the fourth step include, but are not limited to, errors that result in a miscarriage of justice, meaning that the errors led to the conviction of a defendant who is actually innocent. Olano, 507 U.S. at 736 , 113 S.Ct. 1770 .

The fourth step is critical in the federal system. Even a plain error affecting a substantial right will not be corrected in the federal system unless the reviewing court determines, in the exercise of its discretion, that the fourth step has been met, "for otherwise the discretion afforded by [Fed. R.Crim.P. 52(b) ] would be illusory." Olano, 507 U.S. at 737 , 113 S.Ct. 1770 . As a result, some federal courts have found that plain error exists, but have decided not to correct it. See, e.g., United States v. Johnson, 219 F.3d 349, 354 (4th Cir.2000).

It is unclear whether Colorado's formulation of the plain error test, as described in Miller, incorporates the fourth component of the federal test. On one hand, one commentator has suggested that Colorado's test folds the third and fourth parts of the Olano formulation together. See John D. Seidel, Standards of Appellate Review in State Versus Federal Courts, 85 Colo. Law. 48 , 51 (Apr. 2006).

On the other hand, I cannot find any case in which our supreme court has discussed the discretionary aspect of Olamo's fourth step or whether Crim. P. 52(b) contains a discretionary component that would be applied in the manner described in Olano.

The discretionary aspect of the fourth step is important. For example, the United States Supreme Court has employed it to conclude that it need not resolve whether the error affected substantial rights because, even assuming that a defendant's substantial rights were affected, he or she would be denied relief because the error did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings. United States v. Cotton, 585 U.S. 625 , 682-33, 122 S.Ct. 1781 , 152 L.Ed.2d 860 (2002); Johnson, 520 U.S. at 469 , 117 S.Ct. 1544 . I know of no Colorado Supreme Court case that has taken this approach.

*57 If we are going to expand the scope of our plain error review based on federal authority, I wonder whether we are also importing the federal courts' view of the fourth step of plain error review. This concern is not idle because at least one federal court used the fourth step to resolve an unpreserved double jeopardy claim. In United States v. Danson, 115 Fed.Appx. 486, 488 (2d Cir.2004), a case involving an unpreserved double jeopardy argument that the indictment was multiplici-tous because it charged the same crime in different counts, the court resolved this issue by applying the fourth Olano step. The court concluded that, "[blecause erroneous multiplicity, if any, in the indictment did not affect [the defendant's] term of imprisonment, any error did not seriously affect the fairness of the proceedings below." 115 Fed.Appx. at 488 .

Interpreting our plain error standard congruently with the federal four-step approach could be beneficial. First, the four-step analysis would allow Colorado courts to apply helpful and persuasive federal authority. Second, the use of the four-step analysis could lessen some of my concerns about the expansion of plain error review because the four-step test allows reviewing courts to apply a discretionary brake on the review of unpreserved errors that do not threaten the integrity, fairness, or public reputation of our judicial system. This brake would conserve limited judicial resources, much in the manner that the use of Cagle conserves them.

However, because of the apparent differences between our plain error standard and its federal counterpart, federal four-step authority is not necessarily helpful or persuasive. Further, a decision employing the discretionary fourth step to decline to review an issue may be reversed because our supreme court determines that the fourth step does not exist in Colorado. Therefore, unless and until our supreme court informs us that Colorado's plain error standard is congruent with the federal four-step approach, I respectfully suggest that using federal cases to expand the types of errors we review for plain error risks muddying, rather than clarifying, our plain error jurisprudence.

2. Habeas Corpus Review

The Tenth Cireuit Court of Appeals has stated that a state court's analysis of a federal issue under the plain error standard does not act as a procedural bar to federal habeas corpus review. See Cargle v. Mullin, 317 F.3d 1196, 1206 (10th Cir.2003). However,

a state court could deny relief for what it recognizes or assumes to be federal error, because of the petitioner's failure to satisfy some independent state law predicate. In such a case, that non-merits predicate would constitute an independent state ground for decision which would warrant application of procedural-bar principles on federal habeas.

Id.

By extending plain error review to the sorts of errors in this case, we risk eliminating a procedural bar that might be available to prevent federal habeas review of them. This is so because, without plain error review, the failure to raise a contemporaneous objection can create a procedural bar unless, of course, a habeas petitioner can demonstrate cause for the default and actual prejudice. United States v. Wiseman, 297 F.3d 975, 979-80 (10th Cir.2002); see also McCracken v. Gibson, 268 F.3d 970, 976 (10th Cir.2001) ("We will not consider issues on habeas review 'that have been defaulted in state court on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice'" (quoting Smallwood v. Gibson, 191 F.3d 1257, 1267 (10th Cir.1999))).

I concede that the disagreement in our cases that the majority cites may raise the question whether the procedural default rule in this context has been firmly established and regularly followed, thereby undereutting its efficacy as an independent and adequate state procedural grounds. See McCracken v. Gibson, 268 F.3d at 976 .

However, I contend, nonetheless, that we should not intentionally increase the reach of the plain error rule without a careful understanding of how such an extension would affect our procedural default jurisprudence, and, how, in turn, our jurisprudence would *58 affect federal habeas corpus review. Depending upon one's viewpoint-defense counsel or prosecutor, for example-eliminating this procedural bar may, or may not, be a good idea. I respectfully submit that we need a full explication of this issue in order to decide whether it is a good idea.

B. Other Concerns

As the majority correctly observes, citing People v. Smith, 121 P.3d 243, 253 (Colo.App.2005) (Webb, J., specially concurring), requiring defendants to preserve these errors in the trial court before we review them will conserve precious judicial resources. This is a worthy goal.

By my informal survey, the court of appeals published twenty-two opinions in criminal cases in July and August of this year; five of them contained plain error analysis of at least one issue. I do not employ this crude figure to argue that we face plain error analysis in twenty-two percent of our erimi-nal cases, but simply to point out that plain error is our constant companion, and that it is often employed for issues that, after we are done, are not seen as affecting substantial rights. In my view, this should not be so because "[rJleviewing courts are not to use the plain-error doctrine to consider trial court errors not meriting appellate review absent timely objection-a practice [the Supreme Court has] criticized as 'extravagant protection'" United States v. Young, 470 U.S. 1, 16 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985) (footnote omitted) (quoting Henderson v. Kibbe, 431 U.S. 145 , 154 n. 12, 97 S.Ct. 1730 , 52 L.Ed.2d 203 (1977)).

This comment about limitations on the use of the plain error doctrine in Young recently, in part, prompted the Kansas Supreme Court to reverse its course and decline to review certain unpreserved evidentiary errors. State v. King, 288 Kan. 333, 348-49 , 204 P.3d 585, 595-96 (2009) ("Although our past decisions may have relaxed the objection requirement in the evidentiary context, this practice has not only led to confusion as to the standards that should be applied on appeal, but also has de-emphasized the role of counsel at trial and has impaired the gate-keeping function of district courts in this state.").

To increase the number of plain errors we already review by adding more arising out of unpreserved sentencing double jeopardy errors also seems to me to be inconsistent with another admonition in Young. There, the Supreme Court stated that unwarranted expansion of the seope of Fed.R.Crim.P. 52(b) "skew[s] the Rule's 'careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly addressed.'" Young, 470 U.S. at 15 , 105 S.Ct. 1038 (quoting United States v. Frady, 456 U.S. 152, 163 , 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982)).

Obvious injustices based on the Double Jeopardy Clause will not go unaddressed if we decline to review unpreserved errors on direct appeal. Sentences imposed in violation of the constitution may be reviewed in postconviction proceedings under Crim. P. 85(c). See People v. Wenzinger, 155 P.3d 415, 418 (Colo.App.2006); People v. Collier, 151 P.3d 668, 672 (Colo.App.2006) (claim that sentence violates double jeopardy is cognizable under Crim. P. 85(c)). By doing so, the initial review will occur in the trial court, where it belongs.

Although Crim. P. 52(b) is designed to ameliorate injustices visited upon criminal defendants by the application of the contemporaneous objection rule, it was not intended to render all objections superfluous. Plain error review is admittedly difficult for defendants to satisfy, but it should not and cannot substitute wholesale for the parties' obligation to inform the trial court of errors so that the court can correct those errors before they infect the proceedings. The main event is supposed to be the trial and the sentencing hearing, not the appeal. As the Supreme Court noted in Wainwright v. Sykes, 433 U.S. 72, 90 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977):

The failure of the federal habeas courts generally to require compliance with a contemporaneous-objection rule tends to detract from the perception of the trial of a criminal case in state court as a decisive and portentous event. A defendant has been accused of a serious crime, and this is the time and place set *59 for him to be tried by a jury of his peers and found either guilty or not guilty by that jury. To the greatest extent possible all issues which bear on this charge should be determined in this proceeding: the accused is in the court-room, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society's resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desir-

able, and the contemporaneous-objection rule surely falls within this classification.

In my view, the decision to review unpre-served allegations of constitutional sentencing errors such as those in this case is contrary to these principles. Doing so opens a door to plain error review that, at least from my perspective, we do not presently perform. Once a door like this one is opened, it is impossible to shut. For the reasons stated above, I would keep this door closed. __