County District Court Nos. 10CR105 & 11CR118 Honorable
Edward S. Colt, Judge
Cynthia H. Coffman, Attorney General, Brock J. Swanson,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Dayna
Vise, Deputy State Public Defender, Denver, Colorado, for
1 Often, when an appellate court identifies an obvious but
unpreserved trial error, the court will reverse under the
plain error doctrine of Crim. P. 52(b). Yet, if the error
does not seriously affect the fairness, integrity,
or public reputation of judicial proceedings, may the court,
exercising its discretion, still decline to reverse? We
answer this novel question in Colorado "yes, " and
do so here.
2 A jury convicted David Michael Butcher of two counts of
securities fraud and two counts of theft from at-risk adults.
Butcher appeals only the trial court's amended
restitution order, and on the sole ground that the court
erred in its award of prejudgment and postjudgment interest.
But he failed to raise these alleged errors in the trial
court, which limits relief to plain error. Because the trial
court's single obvious error - accruing postjudgment
interest from the date of conviction rather than from the
date of the operative restitution order - does not seriously
affect the fairness, integrity, or public reputation of
judicial proceedings, we exercise our discretion and affirm.
3 At the sentencing hearing in February 2013, three months
after Butcher's conviction, the prosecutor submitted a
proposed restitution order that included prejudgment and
postjudgment interest. Attached to the proposed order were
spreadsheets reflecting the prosecutor's calculations for
each victim. Butcher requested a hearing, without stating any
specific objection. The trial court agreed to delay the
restitution hearing pending the conclusion of an upcoming
trial in a related case.
4 But neither party pursued restitution following resolution
of the related case. In January 2014, the trial court entered
the prosecutor's proposed restitution order, in the
principal amount of $122, 000. The court gave Butcher fifteen
days to file a written objection.
5 Fourteen months later, Butcher filed an objection to the
restitution order, asserting that he was entitled to offsets.
But the objection did not raise the amounts of prejudgment
and postjudgment interest awarded. Despite Butcher's
delay, the court held a restitution hearing in September
6 At the hearing, the parties addressed only whether the
amount of principal should be reduced based on various
offsets, including a portion of the investment that one of
the victims had recouped by selling real property which
Butcher had acquired with some of the victims' money. The
court agreed that the principal should be reduced by $8395.44
and directed the prosecutor to submit a proposed amended
restitution order. Still, no one said anything about
7 The prosecutor's proposed amended restitution order
adjusted the amount of restitution to each victim, again
including prejudgment and postjudgment interest. The
prosecutor also attached spreadsheets reflecting the
calculations. Butcher did not object to the amended
restitution order, and the court entered it.
8 When a defendant steals money from a victim, the victim is
entitled to prejudgment interest on the restitution award,
accruing from the date of the loss to the date of the
restitution order. See Roberts v. People, 130 P.3d
1005, 1006-10 (Colo. 2006). Prejudgment interest at the rate
of eight percent annually is reasonable. Id. at
1010; see also § 5-12-101, C.R.S. 2017
("If there is no agreement or provision of law for a
different rate, the interest on money shall be at the rate of
eight percent per annum, compounded annually.").
Prejudgment interest serves to make the victim whole based on
the loss of use of the money. Roberts, 130 P.3d at
9 The restitution statute in effect at the time provided that
victims were entitled to twelve percent annual postjudgment
interest on their restitution awards. See Ch. 318,
sec. 2, § 18-1.3-603(4)(b)(I), 2002 Colo. Sess. Laws
1422. Postjudgment interest serves to encourage expeditious
payment of restitution. Roberts, 130 P.3d at 1009.
10 Turning to the plain error standard, "[a] plain error
is one that is both 'obvious and substantial.'"
People v. Sandoval, 2018 CO 21, ¶ 11 (quoting
People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).
To warrant reversal, the error must have "undermined the
fundamental fairness of the [proceeding] so as to cast
serious doubt on the reliability of the judgment."
People v. Davis, 2015 CO 36M, ¶ 32 (citing
Miller, 113 P.3d at 750).
11 In sentencing cases, our supreme court has reversed for
plain error where "[t]he trial court's imposition of
an aggravated direct sentence to community corrections based
on judicial fact-finding without a stipulation to that
judicial factfinding by the defendant is the kind of error
that 'undermine[s] the fundamental fairness' of the
sentencing proceeding." Sandoval, ¶ 15
(quoting Davis, ¶ 32). But see People v.
Banark, 155 P.3d 609, 611 (Colo.App. 2007) ("[W]e
perceive no reasonable possibility, much less a reasonable
probability, that defendant was actually prejudiced by the
district court's [Blakely] error.").
Butcher's Unpreserved Contentions on Appeal
12 For the first time on appeal, Butcher raises the following
objections to the amounts of prejudgment and postjudgment
. The amount of prejudgment interest in
the amended restitution order should be reduced based on
the offsets to the principal.
. The prejudgment interest rate of eight
percent should have applied to the period from the date of
the loss to the date of the amended restitution order.
. The postjudgment interest rate of twelve
percent should have applied only from the date of the
amended restitution ...