to the Colorado Court of Appeals Court of Appeals Case No.
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,
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. 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.
Facts and Procedural History
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.
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.
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.
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.
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
Scott petitioned this court for certiorari review, and we
granted his petition.