to the Colorado Court of Appeals Court of Appeals Case No.
Attorneys for Petitioner: Cynthia H. Coffman, Attorney
General John T. Lee, Assistant Attorney General Denver,
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
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.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.
Facts and Procedural History
We begin by discussing the pertinent facts and procedural
histories of the two cases now before us.
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
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.
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.
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."
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 ...