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Scott v. People

Supreme Court of Colorado, En Banc

February 27, 2017

William Costello Scott, Petitioner
v.
The People of the State of Colorado. Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 08CA2327

         Judgment Affirmed

          Attorneys for Petitioner: Douglas K. Wilson, Public Defender Alan Kratz, Deputy Public Defender Denver, Colorado

          Attorneys for Respondent: Cynthia H. Coffman, Attorney General John T. Lee, Assistant Attorney General Denver, Colorado

          GABRIEL JUSTICE

         ¶1 In this case we review two issues: (1) whether a double jeopardy claim can be raised for the first time on appeal and (2) whether defendant William Costello Scott's convictions for both aggravated robbery-menaced with a deadly weapon ("aggravated robbery-menaced victim") and menacing amounted to plain error.[1] In light of our opinion in Reyna-Abarca v. People, 2017 CO 15, P.3d, also decided today, we conclude, contrary to the division majority below, that unpreserved double jeopardy claims can be raised for the first time on appeal and that courts should ordinarily review such claims for plain error. We further conclude, however, that in the circumstances presented here, any error that might have occurred when the trial court entered judgment on Scott's convictions for both aggravated robbery-menaced victim and menacing was not obvious and thus, did not amount to plain error. Accordingly, although we conclude that the division erred in declining to review Scott's unpreserved double jeopardy claim, we nonetheless affirm the judgment.

         I. Facts and Procedural History

         ¶2 The People charged Scott with several counts arising from a robbery. Among those counts were one count of aggravated robbery-menaced victim and one count of menacing. Scott did not object to these counts pursuant to Crim. P. 12(b)(2), which provides, as pertinent here, that objections based on defects in the charging document may be raised only by motion and that the failure to present such an objection constitutes a waiver thereof.

         ¶3 The case proceeded to trial, and a jury found Scott guilty of, among other things, aggravated robbery-menaced victim and menacing. At no point prior to or during the sentencing proceedings did Scott contend that his convictions on these two counts violated double jeopardy principles under the United States or Colorado Constitutions.

         ¶4 Scott appealed and argued for the first time that pursuant to section 18-1-408(5)(c), C.R.S. (2016), felony menacing is a lesser included offense of aggravated robbery-menaced victim and therefore, his convictions on both counts violated double jeopardy principles and should have merged. The People disagreed, noting that in People v. Sisneros, 606 P.2d 1317, 1318 (Colo.App. 1980), a division of the court of appeals had concluded that felony menacing does not merge into aggravated robbery.

         ¶5 In an unpublished, split opinion, the division majority declined to address Scott's foregoing double jeopardy claim because he had not presented it to the trial court. People v. Scott, No. 08CA2327, slip op. at 12 (Colo.App. Nov. 8, 2012). In so ruling, the majority noted that divisions of the court of appeals were split with regard to whether a defendant may raise unpreserved double jeopardy claims on direct appeal. Id. at 11-12. Ultimately, the Scott majority agreed with those divisions that had concluded that defendants may not raise such claims for the first time on appeal. Id. at 12.

         ¶6 Judge Casebolt specially concurred. As pertinent here, he disagreed with the majority's refusal to address Scott's above-described double jeopardy argument. Id. at 14. Judge Casebolt would have reviewed that contention for plain error. Id. He would have concluded, however, that based on Sisneros, which had concluded that a menacing conviction does not merge into an aggravated robbery conviction, Scott was not entitled to relief. Id.

         ¶7 Scott petitioned this court for certiorari review, and we granted his petition.

         II. ...


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