The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY October 4, 2018

No. 15CA1722 People v. Oliver — Crimes — Possession of Weapons by Previous Offenders; Constitutional Law — Sixth Amendment — Right to Trial by Jury

A division of the court of appeals concludes that entry of a

conviction for possession of a weapon by a previous offender

(POWPO) violated the defendant’s constitutional right to trial by

jury. The defendant did not personally waive his right to have the

jury return a verdict on the POWPO charge, even if counsel

attempted to waive this right on the defendant’s behalf. Thus, the

conviction must be reversed and the case remanded for a new trial

on this charge. COLORADO COURT OF APPEALS

Court of Appeals No. 15CA1722 City and County of Denver District Court No. 14CR4171 Honorable Martin F. Egelhoff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

John R. Oliver,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division III Opinion by JUDGE WEBB Harris and Welling, JJ., concur

Announced October 4, 2018

Cynthia H. Coffman, Attorney General, Ellen M. Neel, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jeanne Segil, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 This case calls on us to distinguish between defense counsel’s

power to stipulate to an element of an offense and the defendant’s

sole prerogative to personally waive the right to trial by jury on that

offense. After a jury trial on two felony menacing charges against

defendant, John R. Oliver, the jury acquitted him on one count and

hung on the other. Then the trial court entered a judgment of

conviction for possession of a weapon by a previous offender

(POWPO) — a charged offense on which the jury had not been

instructed. The court did so based only on the jury’s “yes” answer

to a special interrogatory, which had been approved by Oliver’s

counsel, that asked whether Oliver had possessed a firearm, plus

counsel’s stipulation that Oliver was a previous offender.

¶2 We conclude that because Oliver did not personally waive his

right to have the jury return a verdict on the POWPO charge, even if

counsel attempted to waive this right on Oliver’s behalf, entry of the

POWPO conviction violated Oliver’s constitutional right to trial by

jury. We further conclude that the conviction must be reversed and

the case remanded for a new trial on this charge.

1 I. Background

¶3 Investigating a report of a shooting with gang overtones, police

officers obtained from the participants — none of whom had been

hit — differing accounts of what had happened. Ultimately, the

police arrested Oliver and the prosecution charged him with three

counts of felony menacing (deadly weapon) and one count of

POWPO. The victims of the alleged menacing were G.M., T.M., and

D.B. Jr. Later, the prosecution dismissed the count involving G.M.

¶4 Before trial, the parties agreed to bifurcate the POWPO count,

with the defense objective being to avoid the jury learning that

Oliver was a prior offender while it decided the menacing counts.

Thus, POWPO was not mentioned in voir dire or opening

statements. Oliver defended on the theory that, while he did

possess a firearm, which his counsel admitted in opening

statement, because he feared the victims were gang members, he

was entitled to possess the firearm for self-defense.

¶5 Near the end of the trial, however, defense counsel agreed with

the court’s suggestion of using a special interrogatory on possession

instead of having a separate trial on the POWPO count after the

jury returned its verdict on the menacing counts. Then counsel

2 stipulated that Oliver’s juvenile adjudication for sexual assault on a

child satisfied the prior offender element of POWPO, apparently to

avoid possible prejudice from the jury speculating about the

conduct underlying the adjudication.

¶6 The trial court gave the jury a special interrogatory on

possession, which included choice of evils. (Although Oliver had

discussed self-defense with the court, he does not challenge this

aspect of the instruction on appeal.) But neither Oliver’s prior

adjudication nor POWPO was mentioned in any instruction, during

trial, or in closing arguments.

¶7 The jury found Oliver not guilty of having menaced T.M., left

blank the verdict form for the count involving D.B. Jr., and

answered “yes” to the special interrogatory, thereby rejecting the

choice of evils defense. The trial court declared a mistrial as to the

menacing count involving D.B. Jr., which was later dismissed on

the prosecution’s motion. Then the court entered a judgment of

conviction for POWPO, which it based on the special interrogatory

answer and the stipulation.

¶8 Oliver appeals on the sole basis that the jury never returned a

guilty verdict on the POWPO charge. Instead, he contends, the trial

3 court effectively directed a verdict in violation of his federal and

state constitutional rights to trial by jury, which he did not

personally waive.

II. Preservation and Standard of Review

¶9 Oliver concedes that his jury trial contention was not raised in

the trial court. Still, he asserts that review is de novo and, because

structural error occurred, we must remand for a new trial on the

POWPO charge. The Attorney General responds that, assuming the

error was structural, Oliver’s counsel waived his contention, as did

Oliver. But even if the contention was not waived, the Attorney

General continues, we should review only for plain error and the

record does not show prejudice. Oliver replies that his counsel

could not waive his right to a jury trial and he did not personally do

so. Oliver is correct.

¶ 10 To begin, the Attorney General is correct that raising

structural error only gets Oliver so far. After all, “even fundamental

rights can be waived, regardless of whether the deprivation thereof

would otherwise constitute structural error.” Stackhouse v. People,

. But because the jury trial right is one of the few

rights that can only be waived by a defendant personally, whether

4 his counsel’s actions constituted waiver is immaterial. See People v.

Bergerud,

(Colo. 2010) (“Decisions such as

whether to . . . waive a jury trial . . . are so fundamental to a

defense that they cannot be made by defense counsel, but rather

must be made by the defendant himself.”).

¶ 11 Further, and contrary to the Attorney General’s argument for

plain error review, entry of a judgment of conviction absent a jury

verdict of guilty is structural error that cannot be rendered

harmless, despite the weight of the evidence. See, e.g., Sanchez v.

People,

(“[T]he entry of a judgment of conviction

for a crime not supported by a unanimous verdict beyond a

reasonable doubt rises to the level of structural error.”); Medina v.

People,

(Colo. 2007) (“Instead of receiving an

impartial jury verdict convicting her of all elements beyond a

reasonable doubt, the trial court essentially judged Medina guilty of

a new and different crime.”).

¶ 12 Alternatively, the Attorney General argues that either we

should conclude that Oliver personally waived this right on the

existing record or the question whether he did so must be decided

5 on an additional record developed under Crim. P. 35(c). This

argument misses the mark in two ways.

¶ 13 First, the Attorney General relies on various discussions

among counsel and the trial court, all in Oliver’s presence, about

what would be resolved by stipulation and what would be left for

the jury to decide. To be sure, Oliver said nothing during this

colloquy. But a defendant’s waiver of the jury trial right must be

affirmative, not an inference of acquiescence from the defendant’s

silence. See Rice v. People,

,

(1977) (“[A] requirement that the defendant personally waive the

right to a trial by jury alleviates the difficult task presented to an

appellate court that is seeking to determine the meaning of the

defendant’s silence.”); see also Boykin v. Alabama,

(1969) (“We cannot presume a waiver of [the right to a jury

trial] from a silent record.”).

¶ 14 Second, a defendant can challenge waiver under Crim. P. 35(c)

on the basis of facts “that are not contained in the direct appeal

record.” People v. Walker,

(citation omitted). But

Oliver does not point to any such facts and for good reason — the

record is devoid of the requisite affirmative waiver. In other words,

6 he is not challenging the efficacy of such a waiver. And the

Attorney General is arguing only that further evidence could show

his counsel explained to him the effect of the stipulation. But such

evidence would be irrelevant because even well-informed silence

does not constitute a waiver. See Rice,

,

(“If a waiver could be implied from a defendant’s failure to

object to his counsel’s statement, there would be an increased

danger of misinterpretation with respect to a right considered one of

the most important in our democracy.”).

¶ 15 For these reasons, the dispositive question is whether Oliver’s

POWPO conviction was entered in violation of his right to a jury

trial. This is a question of law subject to de novo review. People v.

Laeke,

(“A defendant’s right to a jury trial is an

issue of law.”). And if such an error occurred, it is structural.

People v. Munsey,

(Colo. App. 2009).

III. The Trial Court’s Entry of a Judgment of Conviction on POWPO Deprived Oliver of His Right to Have a Jury Return a Verdict on this Charge

¶ 16 Oliver contends the POWPO conviction violated his

constitutional right to a jury trial because the jury did not know

that he was charged with POWPO, the jury was not instructed on

7 the POWPO element of prior offender status, and the jury did not

return a verdict finding him guilty of POWPO. The Attorney General

responds that where a stipulation has narrowed determining guilt

or innocence to a single factual question, allowing the jury to

answer only that question — here POWPO — satisfies this right.

Again, Oliver is correct.

A. Law

¶ 17 In criminal cases, the constitutional guarantee of a trial by

jury permits conviction only on a jury verdict finding the defendant

guilty of having committed every element of the crime charged.

Sanchez, ¶ 13. Stated differently, a court is prohibited from

“entering a conviction for an offense other than that authorized by a

jury’s verdict, or directing a verdict for the State, no matter how

overwhelming the evidence.”

¶ 18 In addition, “the trial court has a duty to instruct the jury

properly on all of the elements of the offenses charged.” People v.

Wambolt,

, ¶ 38 (quoting People v. Bastin,

(Colo. App. 1996)). And “[t]he jury cannot decide a charge

on which it was not instructed.”

8 B. Analysis

¶ 19 True, Oliver’s POWPO conviction required only three facts to

be determined: previous offender status, stipulated to by defense

counsel but not considered by the jury; possession of a firearm,

admitted by defense counsel in opening statement, which to no

one’s surprise the jury found; and lack of justification under the

choice of evils doctrine, defendant’s sole defense throughout the

trial, which the jury also resolved against him. But regardless of

the stipulation and the jury’s resolution of the two remaining facts,

the jury was never told that it was deciding the POWPO charge.

¶ 20 A similar problem arose in Wambolt, albeit in a more

complicated setting. There, the defendant was tried for driving

under the influence (DUI) and for driving after revocation prohibited

(DARP). The jury was given a special interrogatory verdict form on

aggravated driving after revocation prohibited (ADARP). The jury

convicted him of DARP but hung on DUI, so it did not complete the

special interrogatory.

¶ 21 In a second trial for DUI and ADARP, the jury found Wambolt

guilty of driving while ability impaired (DWAI), as a lesser included

offense of DUI. Then the trial court told the jury that it would now

9 consider a second offense, aggravated driving after revocation

prohibited. However, the jury was not given an instruction on

ADARP. Instead, the court gave an instruction listing the DARP

elements and a special interrogatory asking whether the

prosecution had proven those elements as well as DWAI. After the

jury answered this interrogatory “yes,” the court convicted the

defendant of DWAI and ADARP.

¶ 22 On appeal, the division concluded that the defendant had

essentially been tried again for DARP, which was a double jeopardy

violation. As relevant here, it eliminated the ADARP conviction from

the double jeopardy analysis because

the trial court did not instruct the jury on the elements of the charged offense: ADARP. The only “instruction” even indicating that [the defendant] had been charged with ADARP was the special interrogatory, and even the interrogatory did not refer to the offense as ADARP.

Id. at ¶ 38.

¶ 23 Unlike in this case, the division did not explain defense

counsel’s role — if any — in the procedures followed at the second

trial. But, as discussed above, this is a difference not a distinction

because counsel cannot waive a defendant’s right to a jury trial.

10 ¶ 24 The cases also differ in that Wambolt’s counsel had not

stipulated to any of the elements of ADARP. (DARP and ADARP

differ only in the need to prove DUI or DWAI for ADARP.) And

Oliver argues that one of the two ways in which his counsel gave

away his right to a jury trial was in stipulating to the element of his

prior offender status. Regardless, we do not consider that

difference sufficient to depart from Wambolt.1

¶ 25 In declining to distinguish Wambolt on this basis, we agree

with the Attorney General that Colorado law suggests counsel can

stipulate to an element. See People v. Roy,

(Colo.

App. 1997) (rejecting the argument that “[n]otwithstanding his

stipulation, defendant contends that, by advising the jurors that

they ‘must,’ rather than ‘may,’ regard the stipulated fact as

conclusively proven, the court removed an essential element from

the jury’s consideration”).

¶ 26 As well, other jurisdictions recognize that counsel may do so.

See United States v. DeLeon,

(5th Cir. 2001)

1Although the decision of an earlier division does not bind a second division, “the later division should give the prior decision some deference.” People v. Bondsteel,

(cert. granted Oct. 31, 2016).

11 (“[T]he jury charge did not list the quantity of marijuana as an

element of the offenses. Such an omission cannot be plain error,

however, where as here, the defendant stipulated at trial that the

substance seized was 1035.2 pounds (469.47 kilograms) of

marijuana.”); United States v. Mason,

(10th Cir.

1996) (“[T]he jury need not resolve the existence of an element when

the parties have stipulated to the facts which establish that

element. In the latter circumstance, the judge has not removed the

consideration of an issue from the jury; the parties have. More

specifically, by stipulating to elemental facts, a defendant waives his

right to a jury trial on that element.”); United States v. James,

(9th Cir. 1993) (“A stipulation as to an essential

element of an offense, however, waives a defendant’s right to a jury

decision on the existence of that element. Whether or not the jury

knew of the stipulation is immaterial. Had the jury been told of the

stipulation, it would have been required to consider that the facts in

the stipulation had been conclusively proved.”) (citation omitted);

State v. Olin,

(Idaho Ct. App. 1986) (“Some cases

hold that failure to instruct on a necessary element may be

harmless if the element in question has been conceded by the

12 defendant, either by stipulation or by the plain thrust of his own

evidence. E.g., Hopper v. Evans,

,

,

(1982); People v. Ford,

,

,

(1964).”).2

¶ 27 But we part ways with the Attorney General based on

Wambolt’s holding — to return a verdict, the jury must have been

instructed on the offense. And this is the other way in which Oliver

argues that his counsel gave away his right to a jury trial, even if

counsel acted properly in stipulating to his prior offender status.

¶ 28 Although the Wambolt division did not cite authority

supporting this aspect of its decision, other jurisdictions are in

accord. See, e.g., Commonwealth v. Durham,

(Ky. 2001) (“Trial courts’ jury instructions in criminal cases

cannot . . . consist solely of the fact-based interrogatories and/or

special verdicts . . . .”); State v. Douglas,

(N.C.

Ct. App. 2009) (“[T]he jury did not fulfill its constitutional

responsibility to make an actual finding of defendant’s guilt” where

the “verdict form . . . only required the jury to make factual findings

2 The better practice would be to instruct the jury on all elements of the offense, then further instruct the jury on any stipulations.

13 on the essential elements of the charged crimes and . . . the jury did

not make an actual finding of defendant’s guilt.”).

¶ 29 In the end, just as in Wambolt, the trial court never told

Oliver’s jury that it was deciding the POWPO charge. And this

anomaly requires reversal, even if his counsel properly stipulated to

the prior offender element. For these reasons, the trial court’s entry

of a judgment of conviction on this charge violated Oliver’s

constitutional right to a jury trial.3

IV. Conclusion

¶ 30 The judgment is reversed and the case is remanded for a new

trial on this charge.

JUDGE HARRIS and JUDGE WELLING concur.

3 In so holding, we acknowledge that POWPO charges are often bifurcated from the trial of other charges. As well, defense counsel frequently seek to remove prejudicial evidence from the jury’s view by stipulation. But if either approach leaves the trial court poised to impose a judgment of conviction without the benefit of a jury verdict on that offense, then the court must advise the defendant and obtain a constitutionally adequate, affirmative, knowing, and intelligent waiver of the right to a jury trial.

14