on Denial of Rehearing June 14, 2018.
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
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.
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.
At the sentencing hearing in February 2013, three months
after Butcher's conviction, the prosecutor submitted a
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
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.
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
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
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.
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
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.
Turning to the plain error standard, "[a] plain error is
one that is both `obvious and substantial.'"
People v. Sandoval, 2018 CO 21, ¶11, 413 P.3d 1274
(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,
352 P.3d 950 (citing Miller, 113 P.3d at 750).
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, ...