COLORADO COURT OF APPEALS

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,

. 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,

. 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,

, ¶¶ 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,

(applying

plain error standard because “unpreserved sufficiency claim is no

different than any other unpreserved error”), and People v. Lacallo,

(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,

. We look first to the statutory language, giving the

words and phrases their plain and ordinary meanings.

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.

“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,

(quoting Robinson v. Shell Oil Co.,

(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),

.

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,

-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.,

(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.,

(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,

(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,

(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,

, ¶ 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,

(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,

(Colo. App.

2011). But the trial court is deemed to know the statute. People v.

Helms,

. 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,

(Colo. App. 2007) (trial court commits obvious error by failing

to follow statutory procedure for child victim testimony), aff’d,

. 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,

(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,

(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,

(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,

.

¶ 31 An exception, of course, would be if a subsequent proceeding

exposes the defendant to double jeopardy. But, in People v. Porter,

, 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,

(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,

(“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,

(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,

(citing Close v.

People,

(Colo. 2008); Wiedemer,

). 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,

(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,

, ¶ 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.

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,

(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,

(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,

; People v. Bossert,

(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,

; People v. Gee,

.

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,

, helps make the point. In that

case, the supreme court articulated the standards “that dictate

27 reversal of a conviction in criminal appeals,”

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,

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,

(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,

(Colo. 2007) (waiver); Zapata,

(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,

. If he didn’t, we’ll decide that question by

applying the plain error test. E.g., People v. Miranda,

, ¶¶ 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,

(Colo. 2002). If he didn’t, we’ll decide that question

by applying the plain error test. E.g., People v. Vigil,

(Colo. 2006). But in either scenario we’ll determine de novo

whether the trial court erred. Bernal,

. 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,

(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,

(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,

(8th Cir. 2007) (characterizing the alleged error as “allowing the case to go to the jury”); Williams v. State,

(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,

(Mo. Ct. App. 2017) (“[T]he trial court did not err in entering judgment against Defendant.”); see also People v. Allaire,

(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,

, ¶ 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,

(8th Cir. 2013); Monroe v. State,

(Del. 1995); Richardson v. United States,

(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,

(Colo. 1999). We review the record de novo to decide whether the prosecution met that test. Dempsey v. People,

(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,

(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,

(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.

; see, e.g., United States v. Pennue,

(1st Cir. 2014) (unpreserved claims of structural error are reviewed under the plain error standard); United States v. Ramirez-Castillo,

, 215-16 & n.7 (7th Cir. 2014) (same); United States v. Turrietta,

, 976 n.9 (10th Cir. 2012) (same); United States v. Robinson,

, 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,

(Colo.), modified,

(Colo. 1997). But neither of the Supreme Court cases the court cited for that proposition in Bogdanov — Sullivan v. Louisiana,

(1993), and Arizona v. Fulminante,

(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,

(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,

(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,

(1999); Hagos, ¶ 10; Krutsinger

v. People,

, 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,

. 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,

(9th Cir. 2013); United

States v. DeChristopher,

(10th Cir. 2012);

United States v. Frazier,

(6th Cir. 2010); United

States v. Wallace,

(4th Cir. 2008); United

36 States v. Goode,

(10th Cir. 2007); United

States v. Allen,

(7th Cir. 2004); United States v.

Spinner,

(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,

, 200 & n.10

(4th Cir. 2012); Frazier,

; United States v. Luciano,

(1st Cir. 2003); United States v. Carr,

(6th Cir. 1993); United States v. Curtis,

(9th Cir.

1978); see also United States v. Delgado,

(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,

, 358

n.45 (Del. 2003); State v. Thompson,

(Neb.

1993); State v. Houghton,

(N.H. 2015); State

v. Knowels,

(N.D. 2002); State v. Serrano,

(Or. 2014); State v. Holgate,

(Utah 2000). But see, e.g., Garay v. State,

, 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,

(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,

,

(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.

,

39 (emphasis added).12 The one unpreserved claim of error it

“elect[ed]” to review was an insufficiency of the evidence claim.

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

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,

,

. (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,

,

(1969), overruled on other grounds by People v. Helm,

(Colo. 1981); Falgout v. People,

,

(1969); Morehead v. People,

,

(1968); Moore v. People,

,

(1967); Marshall v. People,

,

(1966); Moreno v. People,

,

(1965); Peterson v. People,

, 27-28,

, 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,

(emphasis added) (citing Griego v. People,

(Colo. 2001)); see also Reyna-Abarca v. People,

(plain error review applies to unpreserved double jeopardy

claims; Crim. P. 52(b) “does not distinguish between constitutional

and nonconstitutional errors”); People v. Davis,

(unanimously applying plain error review to a double

jeopardy issue that turned, in part, on the sufficiency of the

evidence); Martinez v. People,

(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,

, 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,

, 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,

(Colo. App. 1981), and People v. Rice,

,

(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,

, ¶ 12

(rules of civil procedure); Crumb v. People,

, 731 n.5

(Colo. 2010) (rules of criminal procedure); People v. Melendez,

(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,

(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,

.

¶ 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,

(Colo. 1987); Roberts v. People,

,

(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,

; People v. Dunaway,

(Colo.

2004); Walker v. People,

(Colo. 1997); People

v. Clark,

; People v. Devorss,

(Colo. App. 2011); People v. Dunlap,

(Colo. App. 2004); see also Griego,

(“[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,

; 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

(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,

-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,

.

50 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,

); see

also DeChristopher,

(discussing obviousness of

an issue of statutory interpretation); Lacallo, ¶¶ 26-32 (same);

People v. Heywood,

(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,

(1998) (double jeopardy doesn’t preclude retrial on a prior conviction allegation in noncapital sentencing cases); People v. Porter,

(same).

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