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People v. Zadra

Supreme Court of Colorado, En Banc

February 27, 2017

The People of the State of Colorado, Petitioner
v.
Michelle L. Zadra, Respondent The People of the State of Colorado, Petitioner
v.
Cornell L. Adams, Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 10CA1207

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

          Attorneys for Respondent Michelle L. Zadra: Gill & Ledbetter, LLP Anne Whalen Gill Castle Rock, Colorado.

          Attorneys for Respondent Cornell L. Adams: Douglas K. Wilson, Public Defender Sarah A. Kellogg, Deputy Public Defender Denver, Colorado.

          OPINION

          GABRIEL JUSTICE.

         ¶1 These two cases present the issues of whether double jeopardy claims can be raised for the first time on direct appeal and, if so, what standard of review applies.[1]We addressed these same issues in four cases decided today as Reyna-Abarca v. People, 2017 CO 15, ___P.3d ___. In Reyna-Abarca, we concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error. Id. at ¶ 2. Applying that ruling here, we conclude that the divisions in People v. Zadra, 2013 COA 140, ___ P.3d___, and People v. Adams, No. 12CA339 (Colo.App. Mar. 12, 2015), correctly conducted plain error review of the defendants' unpreserved double jeopardy claims and merged certain of the defendants' convictions. Accordingly, we affirm the judgments in both cases.

         I. Facts and Procedural History

         ¶2 We begin by discussing the pertinent facts and procedural histories of the two cases now before us.

         A. Zadra

         ¶3 The People charged Michelle L. Zadra with, among other things, nine perjury counts related to testimony that she provided in connection with her role as a captain in the Gunnison County Sheriff's Office with supervisory authority over the county jail. Zadra did not object to the multiple perjury charges 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.

         ¶4 After trial, a jury found Zadra guilty of, among other charges, seven perjury counts. At no time prior to or during the sentencing proceedings did Zadra argue that her multiple perjury convictions violated her double jeopardy rights under either the United States or Colorado Constitutions.

         ¶5 Zadra appealed her convictions and argued, as pertinent here, that charging and sentencing her on seven perjury counts that allegedly arose from her testimony at a single hearing violated section 18-1-408(1), C.R.S. (2016). That section allows a defendant to be prosecuted for multiple offenses arising from his or her conduct but does not allow the defendant to be convicted of more than one offense if, among other things, (1) one offense is included in the other, (2) one offense consists only of an attempt to commit the other, or (3) the offense at issue is defined as a continuing course of conduct and the defendant's course of conduct was uninterrupted (unless the law provides that specific periods or instances of such conduct constitute separate offenses). Id. Zadra contended that the testimony underlying the seven perjury counts at issue all occurred at a single hearing and therefore constituted a single episode. She thus argued that her multiplicitous convictions violated section 18-1-408.

         ¶6 The People responded that Zadra had waived this claim by not objecting at trial to defects in the information under Crim. P. 12(b)(2). Alternatively, the People contended that section 18-1-408 did not preclude the multiple perjury convictions at issue because the applicable perjury statute did not define perjury as a continuing offense and each conviction depended on different "funds of evidence."

         ¶7 In a unanimous, published decision, the court of appeals division, relying on case law interpreting the federal analogue to Crim. P. 12(b)(2), see Fed. R. Crim. P. 12(b)(2)(B), initially agreed with the People's assertion that a multiplicity challenge to counts alleged in a charging document is an objection of the type that Crim. P. 12(b)(2) requires, at least when the defect is apparent from the face of the charges. Zadra, ¶¶ 65-66. The division further observed, however, that federal appellate courts had disagreed as to whether a "waiver" under the federal rule precluded appellate review altogether, absent a showing of good cause for overlooking the waiver. Id. at ¶ 67. In particular, the division noted that some courts had held that plain error review was available if it appeared that the defendant's failure to file a Fed. R. Crim. P. 12(b)(2)(B) motion was not intentional, but rather was the result of mere oversight. Id. Persuaded by this reasoning, the Zadra division concluded that because nothing in the record indicated that Zadra's failure to file a timely motion asserting multiplicity was anything other ...


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