     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                              October 4, 2018

                               2018COA146

No. 15CA1722 People v. Oliver — Crimes — Possession of
Weapons by Previous Offenders; Constitutional Law — Sixth
Amendment — Right to Trial by Jury

     A division of the court of appeals concludes that entry of a

conviction for possession of a weapon by a previous offender

(POWPO) violated the defendant’s constitutional right to trial by

jury. The defendant did not personally waive his right to have the

jury return a verdict on the POWPO charge, even if counsel

attempted to waive this right on the defendant’s behalf. Thus, the

conviction must be reversed and the case remanded for a new trial

on this charge.
COLORADO COURT OF APPEALS                                     2018COA146


Court of Appeals No. 15CA1722
City and County of Denver District Court No. 14CR4171
Honorable Martin F. Egelhoff, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

John R. Oliver,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division III
                          Opinion by JUDGE WEBB
                        Harris and Welling, JJ., concur

                          Announced October 4, 2018


Cynthia H. Coffman, Attorney General, Ellen M. Neel, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jeanne Segil, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    This case calls on us to distinguish between defense counsel’s

 power to stipulate to an element of an offense and the defendant’s

 sole prerogative to personally waive the right to trial by jury on that

 offense. After a jury trial on two felony menacing charges against

 defendant, John R. Oliver, the jury acquitted him on one count and

 hung on the other. Then the trial court entered a judgment of

 conviction for possession of a weapon by a previous offender

 (POWPO) — a charged offense on which the jury had not been

 instructed. The court did so based only on the jury’s “yes” answer

 to a special interrogatory, which had been approved by Oliver’s

 counsel, that asked whether Oliver had possessed a firearm, plus

 counsel’s stipulation that Oliver was a previous offender.

¶2    We conclude that because Oliver did not personally waive his

 right to have the jury return a verdict on the POWPO charge, even if

 counsel attempted to waive this right on Oliver’s behalf, entry of the

 POWPO conviction violated Oliver’s constitutional right to trial by

 jury. We further conclude that the conviction must be reversed and

 the case remanded for a new trial on this charge.




                                    1
                            I. Background

¶3    Investigating a report of a shooting with gang overtones, police

 officers obtained from the participants — none of whom had been

 hit — differing accounts of what had happened. Ultimately, the

 police arrested Oliver and the prosecution charged him with three

 counts of felony menacing (deadly weapon) and one count of

 POWPO. The victims of the alleged menacing were G.M., T.M., and

 D.B. Jr. Later, the prosecution dismissed the count involving G.M.

¶4    Before trial, the parties agreed to bifurcate the POWPO count,

 with the defense objective being to avoid the jury learning that

 Oliver was a prior offender while it decided the menacing counts.

 Thus, POWPO was not mentioned in voir dire or opening

 statements. Oliver defended on the theory that, while he did

 possess a firearm, which his counsel admitted in opening

 statement, because he feared the victims were gang members, he

 was entitled to possess the firearm for self-defense.

¶5    Near the end of the trial, however, defense counsel agreed with

 the court’s suggestion of using a special interrogatory on possession

 instead of having a separate trial on the POWPO count after the

 jury returned its verdict on the menacing counts. Then counsel


                                   2
 stipulated that Oliver’s juvenile adjudication for sexual assault on a

 child satisfied the prior offender element of POWPO, apparently to

 avoid possible prejudice from the jury speculating about the

 conduct underlying the adjudication.

¶6    The trial court gave the jury a special interrogatory on

 possession, which included choice of evils. (Although Oliver had

 discussed self-defense with the court, he does not challenge this

 aspect of the instruction on appeal.) But neither Oliver’s prior

 adjudication nor POWPO was mentioned in any instruction, during

 trial, or in closing arguments.

¶7    The jury found Oliver not guilty of having menaced T.M., left

 blank the verdict form for the count involving D.B. Jr., and

 answered “yes” to the special interrogatory, thereby rejecting the

 choice of evils defense. The trial court declared a mistrial as to the

 menacing count involving D.B. Jr., which was later dismissed on

 the prosecution’s motion. Then the court entered a judgment of

 conviction for POWPO, which it based on the special interrogatory

 answer and the stipulation.

¶8    Oliver appeals on the sole basis that the jury never returned a

 guilty verdict on the POWPO charge. Instead, he contends, the trial


                                    3
  court effectively directed a verdict in violation of his federal and

  state constitutional rights to trial by jury, which he did not

  personally waive.

                 II. Preservation and Standard of Review

¶9     Oliver concedes that his jury trial contention was not raised in

  the trial court. Still, he asserts that review is de novo and, because

  structural error occurred, we must remand for a new trial on the

  POWPO charge. The Attorney General responds that, assuming the

  error was structural, Oliver’s counsel waived his contention, as did

  Oliver. But even if the contention was not waived, the Attorney

  General continues, we should review only for plain error and the

  record does not show prejudice. Oliver replies that his counsel

  could not waive his right to a jury trial and he did not personally do

  so. Oliver is correct.

¶ 10   To begin, the Attorney General is correct that raising

  structural error only gets Oliver so far. After all, “even fundamental

  rights can be waived, regardless of whether the deprivation thereof

  would otherwise constitute structural error.” Stackhouse v. People,

  2015 CO 48, ¶ 8. But because the jury trial right is one of the few

  rights that can only be waived by a defendant personally, whether


                                      4
  his counsel’s actions constituted waiver is immaterial. See People v.

  Bergerud, 223 P.3d 686, 693-94 (Colo. 2010) (“Decisions such as

  whether to . . . waive a jury trial . . . are so fundamental to a

  defense that they cannot be made by defense counsel, but rather

  must be made by the defendant himself.”).

¶ 11   Further, and contrary to the Attorney General’s argument for

  plain error review, entry of a judgment of conviction absent a jury

  verdict of guilty is structural error that cannot be rendered

  harmless, despite the weight of the evidence. See, e.g., Sanchez v.

  People, 2014 CO 29, ¶ 18 (“[T]he entry of a judgment of conviction

  for a crime not supported by a unanimous verdict beyond a

  reasonable doubt rises to the level of structural error.”); Medina v.

  People, 163 P.3d 1136, 1141 (Colo. 2007) (“Instead of receiving an

  impartial jury verdict convicting her of all elements beyond a

  reasonable doubt, the trial court essentially judged Medina guilty of

  a new and different crime.”).

¶ 12   Alternatively, the Attorney General argues that either we

  should conclude that Oliver personally waived this right on the

  existing record or the question whether he did so must be decided




                                      5
  on an additional record developed under Crim. P. 35(c). This

  argument misses the mark in two ways.

¶ 13   First, the Attorney General relies on various discussions

  among counsel and the trial court, all in Oliver’s presence, about

  what would be resolved by stipulation and what would be left for

  the jury to decide. To be sure, Oliver said nothing during this

  colloquy. But a defendant’s waiver of the jury trial right must be

  affirmative, not an inference of acquiescence from the defendant’s

  silence. See Rice v. People, 193 Colo. 270, 272, 565 P.2d 940, 942

  (1977) (“[A] requirement that the defendant personally waive the

  right to a trial by jury alleviates the difficult task presented to an

  appellate court that is seeking to determine the meaning of the

  defendant’s silence.”); see also Boykin v. Alabama, 395 U.S. 238,

  243 (1969) (“We cannot presume a waiver of [the right to a jury

  trial] from a silent record.”).

¶ 14   Second, a defendant can challenge waiver under Crim. P. 35(c)

  on the basis of facts “that are not contained in the direct appeal

  record.” People v. Walker, 2014 CO 6, ¶ 11 (citation omitted). But

  Oliver does not point to any such facts and for good reason — the

  record is devoid of the requisite affirmative waiver. In other words,


                                      6
  he is not challenging the efficacy of such a waiver. And the

  Attorney General is arguing only that further evidence could show

  his counsel explained to him the effect of the stipulation. But such

  evidence would be irrelevant because even well-informed silence

  does not constitute a waiver. See Rice, 193 Colo. at 271, 565 P.2d

  at 941 (“If a waiver could be implied from a defendant’s failure to

  object to his counsel’s statement, there would be an increased

  danger of misinterpretation with respect to a right considered one of

  the most important in our democracy.”).

¶ 15   For these reasons, the dispositive question is whether Oliver’s

  POWPO conviction was entered in violation of his right to a jury

  trial. This is a question of law subject to de novo review. People v.

  Laeke, 2012 CO 13, ¶ 11 (“A defendant’s right to a jury trial is an

  issue of law.”). And if such an error occurred, it is structural.

  People v. Munsey, 232 P.3d 113, 118 (Colo. App. 2009).

  III. The Trial Court’s Entry of a Judgment of Conviction on POWPO
  Deprived Oliver of His Right to Have a Jury Return a Verdict on this
                                  Charge

¶ 16   Oliver contends the POWPO conviction violated his

  constitutional right to a jury trial because the jury did not know

  that he was charged with POWPO, the jury was not instructed on


                                     7
  the POWPO element of prior offender status, and the jury did not

  return a verdict finding him guilty of POWPO. The Attorney General

  responds that where a stipulation has narrowed determining guilt

  or innocence to a single factual question, allowing the jury to

  answer only that question — here POWPO — satisfies this right.

  Again, Oliver is correct.

                                  A. Law

¶ 17   In criminal cases, the constitutional guarantee of a trial by

  jury permits conviction only on a jury verdict finding the defendant

  guilty of having committed every element of the crime charged.

  Sanchez, ¶ 13. Stated differently, a court is prohibited from

  “entering a conviction for an offense other than that authorized by a

  jury’s verdict, or directing a verdict for the State, no matter how

  overwhelming the evidence.” Id.

¶ 18   In addition, “the trial court has a duty to instruct the jury

  properly on all of the elements of the offenses charged.” People v.

  Wambolt, 2018 COA 88, ¶ 38 (quoting People v. Bastin, 937 P.2d

  761, 764 (Colo. App. 1996)). And “[t]he jury cannot decide a charge

  on which it was not instructed.” Id.




                                     8
                               B. Analysis

¶ 19   True, Oliver’s POWPO conviction required only three facts to

  be determined: previous offender status, stipulated to by defense

  counsel but not considered by the jury; possession of a firearm,

  admitted by defense counsel in opening statement, which to no

  one’s surprise the jury found; and lack of justification under the

  choice of evils doctrine, defendant’s sole defense throughout the

  trial, which the jury also resolved against him. But regardless of

  the stipulation and the jury’s resolution of the two remaining facts,

  the jury was never told that it was deciding the POWPO charge.

¶ 20   A similar problem arose in Wambolt, albeit in a more

  complicated setting. There, the defendant was tried for driving

  under the influence (DUI) and for driving after revocation prohibited

  (DARP). The jury was given a special interrogatory verdict form on

  aggravated driving after revocation prohibited (ADARP). The jury

  convicted him of DARP but hung on DUI, so it did not complete the

  special interrogatory.

¶ 21   In a second trial for DUI and ADARP, the jury found Wambolt

  guilty of driving while ability impaired (DWAI), as a lesser included

  offense of DUI. Then the trial court told the jury that it would now


                                    9
  consider a second offense, aggravated driving after revocation

  prohibited. However, the jury was not given an instruction on

  ADARP. Instead, the court gave an instruction listing the DARP

  elements and a special interrogatory asking whether the

  prosecution had proven those elements as well as DWAI. After the

  jury answered this interrogatory “yes,” the court convicted the

  defendant of DWAI and ADARP.

¶ 22   On appeal, the division concluded that the defendant had

  essentially been tried again for DARP, which was a double jeopardy

  violation. As relevant here, it eliminated the ADARP conviction from

  the double jeopardy analysis because

             the trial court did not instruct the jury on the
             elements of the charged offense: ADARP. The
             only “instruction” even indicating that [the
             defendant] had been charged with ADARP was
             the special interrogatory, and even the
             interrogatory did not refer to the offense as
             ADARP.

  Id. at ¶ 38.

¶ 23   Unlike in this case, the division did not explain defense

  counsel’s role — if any — in the procedures followed at the second

  trial. But, as discussed above, this is a difference not a distinction

  because counsel cannot waive a defendant’s right to a jury trial.


                                    10
¶ 24   The cases also differ in that Wambolt’s counsel had not

  stipulated to any of the elements of ADARP. (DARP and ADARP

  differ only in the need to prove DUI or DWAI for ADARP.) And

  Oliver argues that one of the two ways in which his counsel gave

  away his right to a jury trial was in stipulating to the element of his

  prior offender status. Regardless, we do not consider that

  difference sufficient to depart from Wambolt.1

¶ 25   In declining to distinguish Wambolt on this basis, we agree

  with the Attorney General that Colorado law suggests counsel can

  stipulate to an element. See People v. Roy, 948 P.2d 99, 102 (Colo.

  App. 1997) (rejecting the argument that “[n]otwithstanding his

  stipulation, defendant contends that, by advising the jurors that

  they ‘must,’ rather than ‘may,’ regard the stipulated fact as

  conclusively proven, the court removed an essential element from

  the jury’s consideration”).

¶ 26   As well, other jurisdictions recognize that counsel may do so.

  See United States v. DeLeon, 247 F.3d 593, 598 (5th Cir. 2001)

  1Although the decision of an earlier division does not bind a second
  division, “the later division should give the prior decision some
  deference.” People v. Bondsteel, 2015 COA 165, ¶ 14 (cert. granted
  Oct. 31, 2016).


                                    11
(“[T]he jury charge did not list the quantity of marijuana as an

element of the offenses. Such an omission cannot be plain error,

however, where as here, the defendant stipulated at trial that the

substance seized was 1035.2 pounds (469.47 kilograms) of

marijuana.”); United States v. Mason, 85 F.3d 471, 472 (10th Cir.

1996) (“[T]he jury need not resolve the existence of an element when

the parties have stipulated to the facts which establish that

element. In the latter circumstance, the judge has not removed the

consideration of an issue from the jury; the parties have. More

specifically, by stipulating to elemental facts, a defendant waives his

right to a jury trial on that element.”); United States v. James, 987

F.2d 648, 656 (9th Cir. 1993) (“A stipulation as to an essential

element of an offense, however, waives a defendant’s right to a jury

decision on the existence of that element. Whether or not the jury

knew of the stipulation is immaterial. Had the jury been told of the

stipulation, it would have been required to consider that the facts in

the stipulation had been conclusively proved.”) (citation omitted);

State v. Olin, 725 P.2d 801, 815 (Idaho Ct. App. 1986) (“Some cases

hold that failure to instruct on a necessary element may be

harmless if the element in question has been conceded by the


                                  12
  defendant, either by stipulation or by the plain thrust of his own

  evidence. E.g., Hopper v. Evans, 456 U.S. 605, 102 S. Ct. 2049, 72

  L. Ed. 2d 367 (1982); People v. Ford, 60 Cal.2d 772, 36 Cal. Rptr.

  620, 388 P.2d 892 (1964).”).2

¶ 27   But we part ways with the Attorney General based on

  Wambolt’s holding — to return a verdict, the jury must have been

  instructed on the offense. And this is the other way in which Oliver

  argues that his counsel gave away his right to a jury trial, even if

  counsel acted properly in stipulating to his prior offender status.

¶ 28   Although the Wambolt division did not cite authority

  supporting this aspect of its decision, other jurisdictions are in

  accord. See, e.g., Commonwealth v. Durham, 57 S.W.3d 829, 837

  (Ky. 2001) (“Trial courts’ jury instructions in criminal cases

  cannot . . . consist solely of the fact-based interrogatories and/or

  special verdicts . . . .”); State v. Douglas, 676 S.E.2d 620, 624 (N.C.

  Ct. App. 2009) (“[T]he jury did not fulfill its constitutional

  responsibility to make an actual finding of defendant’s guilt” where

  the “verdict form . . . only required the jury to make factual findings

  2 The better practice would be to instruct the jury on all elements of
  the offense, then further instruct the jury on any stipulations.


                                     13
  on the essential elements of the charged crimes and . . . the jury did

  not make an actual finding of defendant’s guilt.”).

¶ 29   In the end, just as in Wambolt, the trial court never told

  Oliver’s jury that it was deciding the POWPO charge. And this

  anomaly requires reversal, even if his counsel properly stipulated to

  the prior offender element. For these reasons, the trial court’s entry

  of a judgment of conviction on this charge violated Oliver’s

  constitutional right to a jury trial.3

                               IV. Conclusion

¶ 30   The judgment is reversed and the case is remanded for a new

  trial on this charge.

       JUDGE HARRIS and JUDGE WELLING concur.




  3 In so holding, we acknowledge that POWPO charges are often
  bifurcated from the trial of other charges. As well, defense counsel
  frequently seek to remove prejudicial evidence from the jury’s view
  by stipulation. But if either approach leaves the trial court poised
  to impose a judgment of conviction without the benefit of a jury
  verdict on that offense, then the court must advise the defendant
  and obtain a constitutionally adequate, affirmative, knowing, and
  intelligent waiver of the right to a jury trial.


                                      14
