COLORADO COURT OF APPEALS                                            2017COA124


Court of Appeals No. 13CA2021
City and County of Denver District Court Nos. 11CR3189 & 11CR4812
Honorable Brian R. Whitney, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Roger Jay Kadell,

Defendant-Appellant.


                       SENTENCE REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                   Division IV
                          Opinion by JUDGE WELLING
                               Graham, J., concurs
                J. Jones, J., concurs in part and dissents in part

                          Announced October 5, 2017


Cynthia H. Coffman, Attorney General, Megan C. Rasband, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Karen Mahlman Gerash,
Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    The defendant, Roger Jay Kadell, appeals the trial court’s

 imposition of a sentence under the habitual criminal statute.

 Kadell contends that there is insufficient evidence that he was

 convicted of three qualifying felonies before his current convictions.

 We agree and conclude that, as a matter of first impression, for a

 prior drug felony conviction to qualify as a predicate offense under

 the habitual criminal statute, the prosecution must prove that the

 prior offense of conviction remained a felony under Colorado law at

 the time the defendant committed the new offense, even when the

 prior conviction was entered in Colorado. Because the prosecution

 did not present sufficient evidence of this fact at Kadell’s sentencing

 hearing, we reverse Kadell’s sentence and remand for further

 proceedings.

                           I.    Background

¶2    A jury convicted Kadell of six counts of robbery and one count

 of aggravated motor vehicle theft, each of which is a class 4 felony.

 Before sentencing, the trial court adjudicated Kadell a habitual

 criminal based on three prior felony convictions: in 1997 for

 attempted cultivation of marijuana; in 2005 for theft-by-receiving;

 and in 2006 for aggravated motor vehicle theft. The trial court


                                    1
 imposed a sentence of twenty-four years in the custody of the

 Department of Corrections, four times the presumptive maximum

 sentence for a class 4 felony, in accordance with the habitual

 criminal statute.

                             II.   Analysis

¶3    Kadell raises three issues on appeal. First, he contends that

 the trial court misapplied the habitual criminal statute. Second, he

 contends the trial court erred by denying a motion to suppress his

 prior convictions. Finally, Kadell contends the trial court erred by

 failing to give his sentence an extended proportionality review. We

 examine each of these issues in turn.

                     A.   Habitual Criminal Finding

¶4    Kadell contends that his 1997 conviction for attempted

 cultivation of marijuana does not count as a felony under the

 habitual criminal statute. He argues that in 2011, when he

 committed his offenses in this case, attempted cultivation of

 marijuana was no longer a felony in Colorado unless the defendant

 possessed more than six plants and because the trial court had no

 evidence of how many plants were involved in the 1997 conviction,




                                   2
 that conviction could not have counted as a predicate felony under

 the habitual criminal statute. We agree.

                       1.    Standard of Review

¶5    Kadell frames his argument as a challenge to the sufficiency of

 the evidence. Ordinarily, a defendant may raise a sufficiency of the

 evidence claim for the first time on appeal. People v. Garcia, 2012

 COA 79, ¶ 35. But Kadell’s argument is no ordinary sufficiency of

 the evidence of challenge; rather, his claim is premised solely on an

 interpretation of the habitual criminal statute.

¶6    During the habitual phase of trial, Kadell did not raise the

 statutory interpretation argument he now advances on appeal.

 Instead, Kadell made a general argument that there was insufficient

 evidence that he committed any of the prior felonies. Because of

 this, the People contend that the issue should be reviewed only for

 plain error. See Hagos v. People, 2012 CO 63, ¶ 18. Kadell

 disagrees. The same disagreement divides this court.1 Compare




 1 Our supreme court has granted certiorari in a case involving this
 very issue and that case will likely resolve the appropriate standard
 of review to apply when a defendant challenges the sufficiency of
 the evidence by raising a novel issue of statutory interpretation for

                                   3
 People v. McCoy, 2015 COA 76M, ¶¶ 21, 36 (defendant may, for the

 first time on appeal, argue a sufficiency of the evidence claim which

 is dependent on an statutory interpretation) (cert. granted in part

 Oct. 3, 2016), with People v. Heywood, 2014 COA 99, ¶ 38 (applying

 plain error standard because “unpreserved sufficiency claim is no

 different than any other unpreserved error”), and People v. Lacallo,

 2014 COA 78, ¶¶ 6, 20 (applying plain error standard to

 defendant’s statutory argument that was not “even impliedly” raised

 in trial court). We do not need to stake out a position in this

 dispute, however, because we conclude that the trial court’s

 decision to count Kadell’s 1997 felony conviction as a prior felony

 under the habitual criminal statute necessitates reversal even on

 plain error review.

       2.   Habitual Criminal Statute and Changes in the Law

¶7    Before discussing how the trial court’s interpretation

 necessitates reversal, it is helpful to discuss how the habitual

 criminal statute deals with underlying convictions when there has

 been a change in law.



 the first time on appeal. See Maestas v. People, (Colo. No.
 15SC180, Oct. 26, 2015) (unpublished order).

                                   4
¶8     Under the habitual criminal statute, every person convicted of

  a felony who has been three times previously convicted of a felony

  shall be adjudged a habitual criminal and shall receive a sentence

  of four times the maximum presumptive range. § 18-1.3-

  801(2)(a)(I), C.R.S. 2017. Kadell was so adjudicated in this case.

  The statute contains an exception, however, that “[n]o drug law

  conviction shall be counted as a prior felony conviction . . . unless

  such prior offense would be a felony if committed in this state at the

  time of the commission of the new offense.” § 18-1.3-801(3).

¶9     In 1997, Kadell pleaded guilty to a class 5 felony of attempted

  cultivation of marijuana. The Colorado statute under which Kadell

  pleaded guilty in 1997 provided that it was a crime for a person to

  knowingly “cultivate, grow, produce, process, or manufacture any

  marihuana or marihuana concentrate,” regardless of quantity.

  § 18-18-406(8), C.R.S. 1997. Attempt to cultivate marijuana was a

  class 4 or 5 felony depending on whether it was the defendant’s first

  offense under that section. Id.; see also § 18-2-101(4), C.R.S. 1997

  (attempt to commit class 4 felony is a class 5 felony).

¶ 10   In 2011, when Kadell committed the offenses in this case, it

  was a class 6 felony to attempt to cultivate marijuana “if the offense


                                     5
  involv[ed] more than six but fewer than thirty plants.” § 18-18-

  406(7.5)(b), C.R.S. 2011; see also § 18-2-101(4), C.R.S. 2011.2 But,

  in 2011, if the offense involved six or fewer plants, attempted

  cultivation of marijuana was a class 2 misdemeanor. § 18-18-

  406(7.5)(a), C.R.S. 2011; see also § 18-2-101(6), C.R.S. 2011

  (attempt to commit class 1 misdemeanor is a class 2 misdemeanor).

  So, in 1997, attempted cultivation of marijuana was a felony no

  matter how many plants were involved, whereas in 2011 the crime

  was only a felony if the prosecution proved that the offense involved

  more than six plants.

¶ 11   The question, from a sufficiency of the evidence standpoint,

  becomes whether the evidence introduced during the habitual

  phase of the trial in this case is sufficient to prove that Kadell’s

  1997 conviction for attempted cultivation of marijuana would still

  be a felony in 2011, meaning that it involved more than six plants.

  On this point, the parties agree, and the record supports, that



  2 With respect to classifying the crime based on the number of
  plants, the statute remains largely unchanged today. See § 18-18-
  406(3)(a)(II), C.R.S. 2017 (a person commits level 4 drug felony if he
  or she knowingly cultivates, grows, or produces more than six but
  fewer than thirty marijuana plants).

                                      6
  evidence introduced during the habitual phase of trial does not

  establish that more than six plants were involved in Kadell’s 1997

  conviction.

  3.   The Trial Court Erred by Not Applying Section 18-1.3-801(3) to
                       Kadell’s 1997 Conviction

¶ 12   We now turn to the People’s contention that, given the

  language of the statute, the exception found in subsection (3) does

  not apply to Kadell’s 1997 conviction.

¶ 13   In interpreting a statute, our primary goals are to discern and

  give effect to the General Assembly’s intent. People v. Shores, 2016

  COA 129, ¶ 16. We look first to the statutory language, giving the

  words and phrases their plain and ordinary meanings. Id. After

  doing this, if we determine that the statute is not ambiguous, we

  enforce it as written and do not resort to other rules of statutory

  construction. Id. “The plainness or ambiguity of statutory

  language is determined by reference to the language itself, the

  specific context in which that language is used, and the broader

  context of the statute as a whole.” People v. Diaz, 2015 CO 28, ¶ 13

  (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)).




                                     7
¶ 14   First, the People argue that the section of the statute

  exempting prior felony drug convictions applies only to out-of-state

  felony drug convictions. We disagree.

¶ 15   The plain language of the statutory exception at issue here

  provides that a “drug law conviction” is exempt from counting

  towards a defendant’s prior felony convictions under habitual

  criminal statute if the underlying drug offense is no longer a felony

  in Colorado. § 18-1.3-801(3).

¶ 16   Nothing in the plain language of the statute suggests that it

  applies only to out-of-state convictions. The statute refers broadly

  to a “drug law conviction” without any apparent limitation as to the

  state of conviction. Id. The only modifier clarifies that the “drug

  law conviction” must still be a felony “in this state,” meaning that a

  drug law conviction must be a felony in Colorado, and not

  necessarily that it must be a felony in the jurisdiction where it

  arose, at the time the new offense was committed. Id. Because the

  plain language is clear, we must apply the statute as written and

  conclude that the exception found in subsection (3) applies to

  Colorado drug law convictions.




                                     8
¶ 17   The People also argue that subsection (3) should apply only to

  out-of-state convictions because other portions of the habitual

  criminal statute make specific reference to out-of-state convictions.

  We are not persuaded.

¶ 18   The habitual criminal statute provides generally that

  qualifying felonies include those crimes that were felonies “under

  the laws of any other state, the United States, or any territory

  subject to the jurisdiction of the United States,” if the crime would

  be a felony in Colorado. See § 18-1.3-801(1)(b)(II) (lifetime habitual

  sentence); § 18-1.3-801(1.5) (little habitual sentence); § 18-1.3-

  801(2) (big habitual sentence). But the legislature’s use of this

  language in other subsections favors Kadell’s suggested

  interpretation of subsection (3), not the People’s.

¶ 19   In telling contrast to subsections (1)(b)(III), (1.5), and (2),

  subsection (3) does not mention or distinguish out-of-state

  convictions from those suffered in Colorado. Instead, it simply

  provides that the exception applies to a “drug law conviction.” This

  linguistic distinction has been present since the General Assembly

  first enacted subsection (3).




                                      9
¶ 20   Subsection (3) first appeared in 1976 and remains unchanged

  today. Ch. 93, sec. 6, § 16-13-101(3), 1976 Colo. Sess. Laws 548.

  When subsection (3) was enacted, the statute already included

  language akin to the current subsections (1)(b)(III), (1.5), and (2).

  § 16-13-101(1) and (2), C.R.S. 1976. As the statute existed in 1976,

  crimes that triggered habitual criminal penalties included felonies

  “under the laws of any other state, the United States, or any

  territory subject to the jurisdiction of the United States.” Id.

  Despite having included language in other parts of the statute

  specifically referencing out-of-state convictions, the legislature left

  such language out of subsection (3).

¶ 21   The General Assembly has amended the habitual statute

  multiple times since 1976, without ever adding a reference to out-

  of-state convictions in subsection (3).3 So, even though subsections

  (1)(b)(III), (1.5), and (2) specifically reference out-of-state

  convictions, subsection (3) has remained consistent in that it lacks

  that similar language. The consistency of subsection (3) and its


  3 Those amendments include a significant revision in 2002 when
  many criminal procedure statutes, including the habitual criminal
  statute, were moved from Title 16 to Title 18. See Ch. 318, sec. 2,
  § 18-1.3-801, 2002 Colo. Sess. Laws 1426-28.

                                       10
  distinct language further supports the conclusion that had the

  legislature intended subsection (3) to apply only to out-of-state

  crimes, it would have said so. Robinson v. Colo. State Lottery Div.,

  179 P.3d 998, 1010 (Colo. 2008) (“[T]he use of different terms [in a

  statute] signals an intent on the part of the General Assembly to

  afford those terms different meanings.”). To conclude otherwise

  would have us read words where none exist. Colo. Dep’t of Revenue

  v. Creager Mercantile Co., 2017 CO 41M, ¶ 25 (Courts must “not

  substitute or add words to statutes.”).

¶ 22   Next, the People contend that the 1997 conviction counts as a

  prior felony under the habitual criminal statute because cultivation

  of marijuana could be a felony under the 2011 statute. Again, the

  language of the statute belies the People’s urged interpretation. The

  statute provides that a drug conviction only counts if the “prior

  offense would be a felony” when the defendant commits the new

  offense. § 18-1.3-801(3) (emphasis added). The statute does not

  provide that a drug-law felony counts as a prior felony under the

  habitual criminal statute if at the time of the new offense there was

  a possibility that the defendant could face a felony charge under

  Colorado law.


                                    11
¶ 23   During the habitual phase of trial, the prosecution bears the

  burden of proving beyond a reasonable doubt that the defendant

  was previously convicted as alleged in the habitual counts. People

  v. Nunn, 148 P.3d 222, 225 (Colo. App. 2006). In this case, the

  prosecution alleged that Kadell was convicted of felony attempted

  cultivation of marijuana. And given its language, the statute

  imposes another burden on the prosecution — to establish that the

  1997 felony “would be a felony” if committed in 2011, when Kadell

  committed the offenses in this case. § 18-1.3-801(3). As discussed

  above, the People presented insufficient evidence at Kadell’s

  sentencing hearing to carry this latter burden.

¶ 24   Finally, the People contend that exempting Colorado drug law

  convictions from the reach of subsection (3) comports with the

  overall purpose of the habitual criminal statutory scheme, which is

  to punish recidivist offenders. See People v. Dist. Court, 711 P.2d

  666, 670 (Colo. 1985) (“The purpose of the Habitual Criminal Act is

  to punish more severely those individuals who show a propensity

  toward repeated criminal conduct.”). But only when the statute is

  ambiguous do we look beyond its text and deploy interpretative

  tools such as the legislative history or the ends the General


                                    12
  Assembly was attempting to attain. McCoy, ¶ 38.4 Section 18-1.3-

  801(3) is unambiguous, so we venture no further and, instead,

  apply the statute as written.

                             4.    Plain Error

¶ 25   As discussed above, we assume a plain error standard of

  review applies to this case. Plain error is error that is both obvious

  and substantial. Hagos, ¶ 18. While substantiality is not in

  dispute, obviousness is. An obvious error is one that contravenes a

  clear statutory command, a well-settled legal principle, or Colorado

  case law. People v. Pollard, 2013 COA 31M, ¶ 40. There are no

  reported decisions interpreting subsection (3) so the trial court

  could not have contravened Colorado case law and the application

  of subsection (3) is far from a well-settled legal principle, but the

  trial court did contravene the statute.

¶ 26   The People contend that the error is not obvious because

  nothing in the statute or case law would have alerted the court to


  4 Even if the statute was ambiguous, “no legislation pursues its
  purposes at all costs.” Rodriguez v. United States, 480 U.S. 522,
  525-26 (1987). The language in subsection (3) evinces a legislative
  intent to temper the reach of the habitual sentencing scheme with
  respect to defendants who had previously suffered felony drug law
  convictions for conduct that is no longer a felony in Colorado.

                                     13
  the error. See People v. Mendoza, 313 P.3d 637, 641 (Colo. App.

  2011). But the trial court is deemed to know the statute. People v.

  Helms, 2016 COA 90, ¶ 69. While the lack of prior guidance is one

  consideration we must take into account when determining whether

  the trial court committed obvious error, it is not the only

  consideration. Violating a statute can be obvious error even if it is

  not coupled with another error. People v. Mosley, 167 P.3d 157,

  161 (Colo. App. 2007) (trial court commits obvious error by failing

  to follow statutory procedure for child victim testimony), aff’d, 2017

  CO 20. Further, as discussed above, our interpretation of

  subsection (3) is informed by nothing more than its plain language.

  When we rely only on the plain language of the statute, an error is

  more likely to be obvious. Heywood, ¶ 36 (error is obvious because

  court applies general meaning to terms and statute is

  unambiguous); see also United States v. Hernandez, 690 F.3d 613,

  622 (5th Cir. 2012) (error is particularly obvious when it involves a

  “straightforward misapplication” of the plain language of a

  sentencing guideline).

¶ 27   For these reasons, we conclude that the trial court’s failure to

  consider the application of subsection (3) was an obvious error.


                                    14
  And because the error resulted in Kadell being sentenced under the

  big habitual provision without sufficient evidence that his 1997

  conviction counted as a prior felony, the error was substantial, and,

  therefore, we conclude that the trial court committed plain error.

¶ 28   In summary, we conclude that under the plain language of

  section 18-1.3-801(3), a drug-law felony, regardless of what

  jurisdiction the conviction arose from, does not count as a prior

  felony under the habitual criminal statute unless the prosecution

  proves that the prior felony was still a felony in this state at the

  time of the commission of the new offense. Because the record does

  not support that Kadell was convicted in 1997 of a 2011 drug-law

  felony, the 1997 conviction does not count as a prior felony under

  the habitual criminal statute. The trial court’s failure to consider

  the application of subsection (3) to Kadell’s felony conviction

  constitutes plain error. Accordingly, we remand the case for

  resentencing. But what does that resentencing proceeding look

  like? That is where we turn next.

                       5.    Procedure on Remand

¶ 29   Kadell requests that we remand the case with directions to

  impose a sentence commensurate with him having two prior felony


                                     15
  convictions.5 That remedy, however, would foreclose the

  prosecution’s opportunity to prove that the 1997 conviction involved

  six or more plants, proof necessitated by contentions Kadell raised

  for the first time on appeal.

¶ 30   As discussed above, subsection (3) was never mentioned either

  before or during the habitual phase of the trial. In the sentencing

  context, remand is appropriate when we disagree with the trial

  court’s interpretation of a statute. See People v. Archuleta-Ferales,

  2014 COA 178, ¶ 10 (remanding for further proceedings when court

  of appeals provides a statutory interpretation of the drug offender

  surcharge statute). This is especially true when the prosecution did

  not have an opportunity to prove its case in the first instance. See

  People v. Gomez, 211 P.3d 53, 57 (Colo. App. 2008) (holding that

  while Curtis advisement was inadequate, prosecution was entitled

  to show that defendant’s choice not to testify was nevertheless




  5 In addition to sentencing a defendant who has three prior felonies,
  the habitual statute allows for a shorter sentence for defendants
  who have two prior felonies in the proceeding ten years. § 18-1.3-
  801(1.5), C.R.S. 2017. Kadell does not dispute that the other two
  predicate felonies can serve as the basis for a habitual criminal
  sentence.

                                    16
  voluntary), abrogated on other grounds by Moore v. People, 2014 CO

  8.

¶ 31   An exception, of course, would be if a subsequent proceeding

  exposes the defendant to double jeopardy. But, in People v. Porter,

  2015 CO 34, ¶ 4, our supreme court held that double jeopardy did

  not bar a subsequent habitual proceeding in a second trial when

  the judgment in the first trial was reversed on appeal. According to

  Porter, both the Colorado and Federal Constitutions ensure that a

  defendant will not be twice put in jeopardy for the “same offense,”

  but the habitual criminal statute creates a status rather than an

  offense. Id. at ¶ 26. So, no jeopardy concerns arise with respect to

  remanding the case for additional habitual proceedings.

¶ 32   Thus, we remand the case for proceedings to determine the

  applicability of section 18-1.3-801(3) to the 1997 conviction, namely

  whether Kadell’s 1997 conviction would still be a felony under

  Colorado law in 2011, when Kadell committed the offenses in this

  case. We would like to provide the trial court and parties more

  explicit guidance regarding what evidence would or would not be

  sufficient to prove that the 1997 conviction qualifies as a 2011

  felony. But because the application of section 18-1.3-801(3) to the


                                   17
  1997 conviction was not raised at Kadell’s original sentencing

  hearing, the record in this case contains a dearth of information

  regarding what evidence may be available to be presented on

  remand. Accordingly, any more detailed guidance would constitute

  an advisory opinion, which must be avoided where, as here, we

  would be speculating as to the underlying facts and evidence that

  may be presented on remand. See Bd. of Cty. Comm’rs v. Cty. Rd.

  Users Ass’n, 11 P.3d 432, 438-40 (Colo. 2000) (an appellate court is

  not empowered to render advisory opinions over cases that are not

  ripe or based on facts that are contingent, speculative, or

  hypothetical); People v. Becker, 2014 COA 36, ¶ 29 (“Addressing the

  issues would therefore result in an advisory opinion, which risks

  improperly depriving the parties of their prerogative to litigate the

  case as they choose.”).

                  B.    Collateral Attack on Convictions

¶ 33   Kadell next argues that the trial court erred by finding that his

  failure to timely file a collateral attack on his prior convictions was

  not the result of excusable neglect. The record does not reflect that

  the trial court ever ruled on Kadell’s excusable neglect claim.




                                     18
¶ 34   Shortly after the prosecution filed the habitual criminal

  counts, Kadell filed a motion to suppress his prior felony

  convictions, as a means of collaterally attacking those convictions.

  Motions to collaterally attack a felony conviction must be brought

  within three years of the conviction. § 16-5-402(1), C.R.S. 2017.

  Kadell’s motion was untimely, but he argued that his failure to file

  within three years was a result of excusable neglect. See § 16-5-

  402(2)(d) (time limit is excused if court hearing the collateral attack

  finds that failure to file on time was the result of excusable neglect).

  The trial court never ruled on Kadell’s excusable neglect claim.

¶ 35   At a post-trial status conference, when the matter was being

  covered by substitute defense counsel, the trial court indicated that

  it was “going to deny” Kadell’s motion, but it set the matter over for

  a ruling, which would allow Kadell’s counsel to make a record

  regarding the impending denial. The next day, with Kadell’s

  counsel present, the trial court did not issue a ruling, but rather

  held the issue in abeyance so that counsel could submit transcripts

  from the prior cases to make a more complete record regarding

  Kadell’s excusable neglect claim. After two more continuances, the

  trial court held a hearing where it made habitual criminal findings


                                     19
  and sentenced the defendant, but did not rule on the excusable

  neglect issue.

¶ 36   At the final sentencing hearing, defense counsel requested

  that the trial court “reconsider” its previous ruling regarding

  excusable neglect. The trial court responded,

            Reconsideration can take place afterwards, if I
            deem it’s necessary, based . . . upon the
            evidence that you’re going to file. But we’re
            going to get into a whole lot of superfluous
            matters, if we go back into the . . . evidence of
            lack of excusable neglect; which correct me if
            I’m wrong, I ruled they didn’t exist in this case.

¶ 37   The court went on to say that excusable neglect can be

  pursued on appeal or by seeking postconviction relief pursuant to

  Crim. P. 35. But the trial court, in fact, had never ruled.

¶ 38   The issue of excusable neglect is a question of fact to be

  resolved first by the trial court. People v. Wiedemer, 852 P.2d 424,

  442 (Colo. 1993). Courts must consider a number of factors in

  addressing the applicability of the excusable neglect bar exception

  including the following:

            (1) whether there are circumstances or outside
            influences preventing a challenge to a prior
            conviction and the extent to which a defendant
            having reason to question the constitutionality
            of a conviction investigates its validity and


                                    20
           takes advantage of avenues of relief that are
           available;

           (2) whether a defendant had any previous need
           to challenge a conviction and either knew that
           the conviction was constitutionally infirm or
           had reason to question its validity;

           (3) whether a defendant had other means of
           preventing the government’s use of the
           conviction so that a postconviction challenge
           was previously unnecessary; and

           (4) whether the passage of time has had an
           effect on the state’s ability to defend against
           the challenge.

People v. Martinez-Huerta, 2015 COA 69, ¶ 12 (citing Close v.

People, 180 P.3d 1015, 1019-20 (Colo. 2008); Wiedemer, 852 P.2d

at 441-42). The trial court need not hold a hearing on a defendant’s

request to invoke the excusable neglect exception in every instance.

People v. Xiong, 940 P.2d 1119, 1119 (Colo. App. 1997) (A court

may summarily deny an untimely request “if the defendant has

failed to allege facts which, if true, would establish justifiable

excuse or excusable neglect.”). But when the trial court fails to

consider the factors that could establish excusable neglect, we must

remand for further proceedings. People v. Chavez-Torres, 2016 COA

169M, ¶ 28 (Remand is appropriate where “the record is silent with

respect to whether the district court considered and weighed these

                                   21
  factors.”). Here, there is no indication that the trial court

  considered any of the factors or made the requisite findings.

¶ 39   On remand, if the trial court finds no justifiable excuse or

  excusable neglect, the trial court need not reach the merits of

  Kadell’s collateral attack. Martinez-Huerta, ¶ 25. If, on the other

  hand, the trial court finds that Kadell’s failure to timely file was the

  result of a justifiable excuse or excusable neglect, the trial court

  should address the merits of Kadell’s claim. Id.

                       C.    Proportionality Review

¶ 40   Last, Kadell seeks an extended proportionality review of his

  sentence. Under the Eighth Amendment a defendant is entitled to a

  proportionality review of his or her sentence, part of which involves

  evaluating the harshness of the penalty. Solem v. Helm, 463 U.S.

  277, 291 (1983). In light of our conclusion in Part II.A of this

  opinion, the case must be remanded for resentencing. Therefore,

  Kadell’s argument seeking an extended proportionality review is

  moot at this juncture. Club Matrix, LLC v. Nassi, 284 P.3d 93, 99

  (Colo. App. 2011) (this court does not have to address arguments

  rendered moot by our disposition of other issues).




                                     22
                            III.   Conclusion

¶ 41   Kadell’s sentence is reversed and the case is remanded to the

  trial court for further proceedings consistent with this opinion.

       JUDGE GRAHAM concurs.

       JUDGE J. JONES concurs in part and dissents in part.




                                    23
       JUDGE J. JONES, concurring in part and dissenting in part.

¶ 42   I concur in the majority’s decision to remand the case for the

  district court to decide whether defendant’s failure to collaterally

  attack his prior convictions sooner was a result of excusable

  neglect. But I dissent from the majority’s reversal of the district

  court’s habitual criminal adjudication based on defendant’s prior

  felony marijuana cultivation conviction.

¶ 43   In resolving defendant’s challenge to the district court’s

  habitual criminal finding on his prior felony conviction for

  cultivation of marijuana, the majority says it applies the plain error

  test. But it does so only assuming, without deciding, that plain

  error is the correct test. In my view, because the claimed error —

  the court’s finding despite an absence of proof that defendant’s

  prior conviction involved more than six plants, as required by

  section 18-1.3-801(3), C.R.S. 2017 — is unpreserved, plain error is

  the only possible test.1 Applying the plain error test comports with



  1Defendant asserts that he did preserve the issue. But his
  argument to the district court against this count wasn’t the same
  one he makes on appeal. Simply put, because he didn’t draw the
  court’s attention to the issue, it’s not preserved. Martinez v. People,
  2015 CO 16, ¶¶ 13-14; People v. Bossert, 722 P.2d 998, 1010 (Colo.

                                    24
  the plain language of Crim. P. 52(b), Colorado precedent, what I

  believe to be a proper understanding of the applicability of the plain

  error standard, and the view of all federal courts of appeals and the

  clear majority of other state appellate courts.2 And when I apply

  that test to this case, I conclude, contrary to the majority, that any

  error isn’t obvious; consequently, I would affirm the district court’s

  habitual criminal adjudication.

       I. Defendant’s Challenge to His Prior Cultivation Conviction

¶ 44      Defendant’s argument that the district court erred in finding

  that he had previously been convicted of a drug felony goes like

  this:

            1. In 1997, he was convicted of cultivation of marijuana, at

               that time a felony in all circumstances. See § 18-18-

               406(8), C.R.S. 1997.




  1986); People v. Galang, 2016 COA 68, ¶ 11; People v. Gee, 2015
  COA 151, ¶¶ 42-46.

  2 Though defendant asserts in his opening brief that “it is not
  necessary to preserve a claim of insufficiency of evidence,” in his
  reply brief he says that if we conclude his claim is not preserved we
  should, “at a minimum, review the contention under the plain error
  standard.”

                                      25
2. Sometime after his conviction, but before 2011, the

  General Assembly changed the law regarding cultivation

  of marijuana. So, in 2011 when he committed the

  offenses charged in this case, cultivation was a felony

  only if the defendant cultivated more than six plants;

  otherwise, it was a misdemeanor. See

  § 18-18-406(7.5)(a), (b), C.R.S. 2011.

3. Section 18-1.3-801(3) provides that a drug law conviction

  counts as a prior felony conviction for habitual criminal

  purposes only if it would be a felony if committed in

  Colorado at the time the new offense was committed.

4. The People were therefore required to prove that his prior

  conviction involved more than six plants.

5. The People didn’t prove that his prior conviction involved

  more than six plants.

6. The trial court therefore erred in finding that his 1997

  conviction counted as a felony for habitual criminal

  purposes and in calculating his sentence using that

  conviction.




                          26
¶ 45   The linchpin of defendant’s argument is section 18-1.3-801(3).

  If he’s right that it applies to his 1997 Colorado conviction, the

  court erred. If he isn’t, the court didn’t err.

                                  II. Analysis

                          A. Standard of Review

   1. Two Inquiries: Was There an Error and Does the Error Require
                              Reversal?

¶ 46   In many criminal cases in which a defendant challenges the

  sufficiency of the evidence for the first time on appeal, the parties

  frame the issue of the applicable standard of review as a choice

  between de novo review (the standard typically urged by the

  defendant) and plain error review (the standard typically urged by

  the People). But that’s a false choice because those two tests aren’t

  alternatives to each other. This is so because de novo review and

  plain error review apply to fundamentally different inquiries. The

  former applies, sometimes, when determining whether there was an

  error. The latter applies, sometimes, when determining whether an

  error requires us to reverse.

¶ 47   Hagos v. People, 2012 CO 63, helps make the point. In that

  case, the supreme court articulated the standards “that dictate



                                      27
  reversal of a conviction in criminal appeals,” id. at ¶ 8: structural

  error, constitutional harmless error, harmless error, “[c]laims where

  the effect on the conviction is constitutionally material to the claim

  itself” (such as when the defendant claims ineffective assistance of

  counsel), plain error, and cumulative error, id. at ¶¶ 9-14 & n.2.3

  Notice that de novo review isn’t among them. Neither are clear error

  and abuse of discretion, two other familiar standards of review.

  Those omissions weren’t oversights. Those three standards apply to

  the determination of whether there was an error, and they apply the

  same regardless of whether the defendant preserved the claim of

  error. They don’t apply to the determination of whether an error

  requires reversal.4

¶ 48   Consider two hypotheticals.




  3The court also included invited error, but I think that’s more
  accurately characterized as a doctrine precluding review altogether.
  See People v. Zapata, 779 P.2d 1307, 1309 (Colo. 1989).

  4 My discussion assumes that the claim of error in a given case
  wasn’t invited or waived. If either of those doctrines applies, we
  won’t review the claim at all, under any standard. Hinojos-Mendoza
  v. People, 169 P.3d 662, 668 (Colo. 2007) (waiver); Zapata, 779 P.2d
  at 1309 (invited error).

                                     28
¶ 49   First hypothetical: The defendant claims on appeal that the

  court erred in admitting hearsay evidence in violation of the rule

  against hearsay. If the defendant preserved the issue with a

  contemporaneous objection, we’ll decide whether any error requires

  reversal by applying the harmless error test. E.g., Nicholls v. People,

  2017 CO 71, ¶ 17. If he didn’t, we’ll decide that question by

  applying the plain error test. E.g., People v. Miranda, 2014 COA

  102, ¶¶ 57-61, 69 (cert. granted in part Aug. 15, 2015). But in

  either scenario we’ll determine whether the trial court erred by

  asking whether the court abused its discretion. Nicholls, ¶ 17;

  Miranda, ¶ 62. Only if the defendant can get over that hurdle will

  the harmless or plain error test come into play.5

¶ 50   Second hypothetical: The defendant claims on appeal that the

  court erred in admitting hearsay testimony in violation of his rights

  under the Confrontation Clause. If the defendant preserved the


  5 I recognize that every standard of reversal requires that there be
  some error, so it can be said that determining error is the first step
  of all such standards. Even so, the test for determining whether
  there was an error is the same regardless of the standard of
  reversal. I also recognize that sometimes the appellate court will
  skip the error step and go right to whether the error was harmless,
  or obvious, or affected the defendant’s substantial rights. But doing
  so doesn’t affect the standard applicable to the error inquiry.

                                    29
  issue, we’ll decide whether any error requires reversal by applying

  the constitutional harmless error test. E.g., Bernal v. People, 44

  P.3d 184, 200 (Colo. 2002). If he didn’t, we’ll decide that question

  by applying the plain error test. E.g., People v. Vigil, 127 P.3d 916,

  929 (Colo. 2006). But in either scenario we’ll determine de novo

  whether the trial court erred. Bernal, 44 P.3d at 198. Absent a

  finding of any error, whether the constitutional harmless error or

  the plain error test applies is irrelevant.

¶ 51   In sum, properly understood, a “standard of review” actually

  has two parts — a “standard of error determination,” if you will, and

  a “standard of reversal.” See United States v. Minners, 362 F. App’x

  931, 937 (10th Cir. 2010) (recognizing the distinction between the

  test for deciding whether there was an error and the “standard for

  reversal”). Conflating the two, as parties and courts sometimes do,

  not only creates confusion but risks deciding cases wrongly.

¶ 52   In the case before us, this understanding of standards of

  review means that de novo review isn’t an option for our standard of




                                     30
  reversal.6 That leaves open the question of what our options are.

  But before turning to that question, we need to determine the

  applicable standard of error. After all, if there wasn’t an error, we

  don’t have to apply a standard of reversal.

                      2. Standard of Error: De Novo

¶ 53   Defendant raises an insufficiency of the evidence challenge on

  appeal, albeit not one of the usual variety.7 Ordinarily, a defendant



  6It’s important to remember what “de novo review” means. It
  means that we accord no deference to the trial court’s
  determination of an issue, but decide the issue as if looking at it
  anew. See Valdez v. People, 966 P.2d 587, 598 (Colo. 1998) (Scott,
  J., concurring). So by its terms it’s a way of deciding whether the
  district court decided an issue correctly. It says nothing about
  what we do if we decide the trial court didn’t decide the issue
  correctly.

  7 When a defendant timely moved for a judgment of acquittal based
  on insufficiency of the evidence, the “error” is the trial court’s denial
  of that motion and the entry of the judgment of conviction. E.g.,
  United States v. Milan, 494 F.3d 640, 643 (8th Cir. 2007)
  (characterizing the alleged error as “allowing the case to go to the
  jury”); Williams v. State, 543 N.E.2d 1128, 1129 (Ind. Ct. App. 1989)
  (“[T]here was no reversible error in the court’s entering a judgment
  of conviction.”); State v. Prince, Nos. ED 104539 & 104606, 2017
  WL 3483660, *2-3 (Mo. Ct. App. 2017) (“[T]he trial court did not err
  in entering judgment against Defendant.”); see also People v. Allaire,
  843 P.2d 38, 40 (Colo. App. 1992) (framing the issue as whether
  “the trial court erred in entering judgment of conviction”). When a
  defendant fails to preserve the issue by appropriate timely motion,
  the error is the trial court’s failure to sua sponte enter a judgment

                                     31
  challenging the sufficiency of the evidence straightforwardly argues

  that the evidence presented at trial wasn’t sufficient to prove one or

  more of the elements of the offense: there is no dispute as to the

  meaning of the elements; the only dispute is whether the evidence

  showed that the defendant’s conduct was within the scope of that

  meaning.

¶ 54   But in this case, the parties dispute what must be proved; that

  is, they dispute the meaning of one of the elements based on the

  interpretation of statutes. Specifically, we must first decide whether

  section 18-1.3-801(3) affects the meaning of “felony” in section 18-

  1.3-801(2)(a)(I). That’s a question of statutory interpretation that

  we, of course, review de novo. People v. Perez, 2016 CO 12, ¶ 8.

¶ 55   But if we agree with defendant’s interpretation, where do we go

  from there? Some would say that we should go straight to the

  usual sufficiency of the evidence test,8 decide whether the




  of acquittal. E.g., United States v. Calhoun, 721 F.3d 596, 600 (8th
  Cir. 2013); Monroe v. State, 652 A.2d 560, 562, 567 (Del. 1995);
  Richardson v. United States, 276 A.2d 237, 238 (D.C. 1971).

  8That test is “whether any rational trier of fact might accept the
  evidence, taken as a whole and in the light most favorable to the
  prosecution, as sufficient to support a finding of the accused’s guilt

                                    32
  prosecution proved the additional fact (the number of plants), and,

  if we conclude that it did not, reverse without further analysis. For

  the reasons discussed below, I would instead apply the plain error

  test, asking whether the court’s error in failing to apply defendant’s

  ad hoc interpretation of section 18-1.3-801(3) was obvious and, if

  so, whether the error so undermined the fundamental fairness of

  the proceeding as to cast serious doubt on the district court’s

  habitual criminal finding. See Hagos, ¶ 14.9

        3. Standard of Reversal: Plain Error Review Is the Only
                  Jurisprudentially Sound Option

¶ 56   Assuming that an unpreserved claim of error is reviewable at

  all (neither invited nor waived), Crim. P. 52(b) expressly provides a




  beyond a reasonable doubt.” People v. Sprouse, 983 P.2d 771, 777
  (Colo. 1999). We review the record de novo to decide whether the
  prosecution met that test. Dempsey v. People, 117 P.3d 800, 807
  (Colo. 2005).

  9 If an insufficiency claim is preserved, and the appellate court finds
  error under the de novo test, the standard of reversal would be
  constitutional harmless error because a conviction based on proof
  insufficient to meet the beyond a reasonable doubt standard is a
  due process violation. Jackson v. Virginia, 443 U.S. 307, 313-16
  (1979). (As discussed below, the error doesn’t qualify as structural.)
  It’s difficult (though perhaps not impossible) to imagine that the
  People could ever show that the error was harmless beyond a
  reasonable doubt.

                                    33
standard of reversal: “Plain error or defects affecting substantial

rights may be noticed although they were not brought to the

attention of the court.” See also CRE 103(d). And Colorado case

law currently recognizes only one other potential standard —

structural error. Hagos, ¶¶ 10-14.10 (Though some judges on this

court have said that sufficiency of the evidence falls within its own

special category of automatic reversal, I reject that notion, for



10 Under federal law, even unpreserved claims of structural error
are subject to plain error review. In Johnson v. United States, 520
U.S. 461 (1997), the Supreme Court rejected an argument that an
alleged structural error was not subject to plain error review,
saying, “the seriousness of the error claimed does not remove
consideration of it from the ambit of [Fed. R. Civ. P. 52(b)],” and
holding that it had no authority to create an exception to the plain
error rule for alleged structural errors. Id. at 466; see, e.g., United
States v. Pennue, 770 F.3d 985, 989 (1st Cir. 2014) (unpreserved
claims of structural error are reviewed under the plain error
standard); United States v. Ramirez-Castillo, 748 F.3d 205, 215-16
& n.7 (7th Cir. 2014) (same); United States v. Turrietta, 696 F.3d
972, 976 n.9 (10th Cir. 2012) (same); United States v. Robinson, 275
F.3d 371, 383 n.4 (4th Cir. 2001) (same). True, the Colorado
Supreme Court has held that structural errors aren’t amenable to
plain error review. Bogdanov v. People, 941 P.2d 247, 253 (Colo.),
modified, 955 P.2d 997 (Colo. 1997). But neither of the Supreme
Court cases the court cited for that proposition in Bogdanov —
Sullivan v. Louisiana, 508 U.S. 275 (1993), and Arizona v.
Fulminante, 499 U.S. 279 (1991) — says that. They hold that
harmless error analysis doesn’t apply to structural error. The Court
in Johnson made clear that plain error analysis can apply to alleged
structural errors.

                                  34
  reasons I’ll go into in some detail later. For now I note that fairly

  recently the supreme court made clear that there is no such thing

  as automatic reversal outside of the structural error context. People

  v. Novotny, 2014 CO 18, ¶¶ 17-21 (also noting that the structural

  error category has been substantially narrowed in the last few

  decades). And the supreme court has also clearly held that all trial

  errors (that is, nonstructural errors) are reviewable only for plain

  error if not preserved. Hagos, ¶ 14; People v. Miller, 113 P.3d 743,

  748-50 (Colo. 2005).)

¶ 57   So which applies — structural error or plain error — when a

  defendant challenges the sufficiency of the evidence for the first

  time on appeal? At least under the current state of the law,

  structural error isn’t the answer. I’m not aware of any Colorado or

  federal appellate case categorizing insufficiency of the evidence as

  structural error. When the Colorado and United States Supreme

  Courts have identified the types of errors qualifying as structural,

  they haven’t listed insufficiency of the evidence among them. E.g.,

  Neder v. United States, 527 U.S. 1, 8 (1999); Hagos, ¶ 10; Krutsinger

  v. People, 219 P.3d 1054, 1058-59 n.1 (Colo. 2009). And, it seems

  to me, for good reason. Structural errors are limited to those errors


                                     35
  that affect the framework within which the trial proceeds — that is,

  errors that infect the entire trial process and necessarily render a

  trial fundamentally unfair. See Novotny, ¶ 21; People v. Flockhart,

  2013 CO 42, ¶ 17. A claim of insufficiency of the evidence doesn’t

  challenge the “framework” of the trial or even the process by which

  guilt is decided.

¶ 58   Maybe the Colorado Supreme Court or the United States

  Supreme Court will someday decide that insufficiency of the

  evidence is a structural error, but neither has yet done so. And in

  light of the limitations of the meaning of structural error and the

  fact that insufficiency of the evidence claims have been a staple of

  criminal law jurisprudence for centuries, I see no reason to

  recognize such a claim as a new type of structural error.

¶ 59   This leaves us then with plain error. We’re in good company.

  The federal appellate courts uniformly apply the plain error

  standard to unpreserved insufficiency of the evidence claims. E.g.,

  United States v. King, 735 F.3d 1098, 1106 (9th Cir. 2013); United

  States v. DeChristopher, 695 F.3d 1082, 1091 (10th Cir. 2012);

  United States v. Frazier, 595 F.3d 304, 306 (6th Cir. 2010); United

  States v. Wallace, 515 F.3d 327, 331-32 (4th Cir. 2008); United


                                    36
  States v. Goode, 483 F.3d 676, 680-81 (10th Cir. 2007); United

  States v. Allen, 390 F.3d 944, 947 (7th Cir. 2004); United States v.

  Spinner, 152 F.3d 950, 955 (D.C. Cir. 1998). And they often do so

  in a quite demanding way, requiring the defendant to show that

  there has been a manifest, or clear and gross, miscarriage of

  justice. E.g., United States v. Chong Lam, 677 F.3d 190, 200 & n.10

  (4th Cir. 2012); Frazier, 595 F.3d at 306; United States v. Luciano,

  329 F.3d 1, 5 (1st Cir. 2003); United States v. Carr, 5 F.3d 986, 991

  (6th Cir. 1993); United States v. Curtis, 568 F.2d 643, 647 (9th Cir.

  1978); see also United States v. Delgado, 672 F.3d 320, 330-31 (5th

  Cir. 2012) (en banc) (explaining that the Fifth Circuit’s miscarriage

  of justice test is merely an application of the plain error test). I

  haven’t found any federal appellate decision applying structural

  error in this context; all such decisions review unpreserved

  sufficiency claims, if at all, for plain error. See 2A Charles Alan

  Wright & Peter J. Henning, Federal Practice & Procedure § 469, at

  388-93 (4th ed. 2009) (so summarizing federal law on the issue).

¶ 60   And lest one think that this approach is unique to the federal

  system, it bears mentioning that the clear majority of state

  appellate courts also apply plain error review to unpreserved


                                     37
  insufficiency claims. See, e.g., Swan v. State, 820 A.2d 342, 358

  n.45 (Del. 2003); State v. Thompson, 507 N.W.2d 253, 270 (Neb.

  1993); State v. Houghton, 126 A.3d 312, 315-16 (N.H. 2015); State

  v. Knowels, 643 N.W.2d 20, 21-23 (N.D. 2002); State v. Serrano,

  324 P.3d 1274, 1279-80 (Or. 2014); State v. Holgate, 10 P.3d 346,

  350-51 (Utah 2000). But see, e.g., Garay v. State, 165 P.3d 99, 101

  n.1 (Wyo. 2007) (declining to apply plain error review and

  apparently holding that reversal is always required if the evidence is

  insufficient).

¶ 61   This brings me to People v. McCoy, 2015 COA 76M (cert.

  granted in part Oct. 3, 2016), in which a majority of the division

  attempted to justify a special automatic reversal exception to plain

  error review for insufficiency claims.11 To get there, the majority

  reasoned merely that because an insufficiency claim is reviewable

  on appeal even if not raised below, plain error review doesn’t apply.

  But in so reasoning, the majority misapprehended how a standard

  of reversal is determined. The fact an error wasn’t invited or



  11 The McCoy majority didn’t assert that the court’s error in failing
  to sua sponte enter a judgment of acquittal constituted structural
  error.

                                    38
  waived, and therefore can be raised on appeal, doesn’t dictate the

  standard of reversal. That standard is dictated by (1) whether the

  issue is constitutional; (2) if it is, the nature of the constitutional

  violation; and (3) whether the issue is preserved. See Hagos, ¶¶ 9-

  14.

¶ 62    Given that other divisions of this court have relied on McCoy, a

  closer examination of its rationale is warranted. Judge Webb did

  much of that work in his special concurrence in that case, McCoy,

  ¶¶ 68-107, but I think there’s a bit more to be said.

¶ 63    The McCoy majority first relied on Morse v. People, 168 Colo.

  494, 452 P.2d 3 (1969), which it characterized as reviewing an

  unpreserved insufficiency of the evidence claim without applying

  plain error. See McCoy, ¶¶ 11-13. That’s a misreading of the case.

  The Morse court noted that the defendant had raised several claims

  of error that he hadn’t preserved at trial or in his motion for a new

  trial. The court said that, “[s]uch being the posture of these various

  other matters,” it would “elect not to resolve — or attempt to

  resolve” any of them, “save one,” because the record didn’t permit it

  to do so in an “intelligent” manner. 168 Colo. at 497, 452 P.2d at 5




                                      39
(emphasis added).12 The one unpreserved claim of error it

“elect[ed]” to review was an insufficiency of the evidence claim. Id.

In justifying its treatment of the unpreserved claims, the court said,

“[i]n support of our determination of this phase of the controversy

see R.C.P. Colo. 37(b) . . . .”13 Id. At that time, Rule 37(b) read that

the appellate court wouldn’t consider claims the defendant had

failed to present in a motion for a new trial “except that plain error

or defects affecting substantial rights may be noted although they

were not brought to the attention of the trial court.” Crim. P. 37(b)

(1963). So in “elect[ing]” to review the insufficiency claim under the

then-applicable plain error rule, the court applied plain error




12 In saying that the record was insufficient to allow it to
intelligently attempt to resolve the other unpreserved issues, the
court plainly signaled that had the record been sufficient on those
issues, it could have reviewed them for plain error under then Crim.
P. 37(b), just as it was doing for the insufficiency claim as to which
there was an adequate record. Had the failure to preserve the other
issues itself been enough to preclude all review, the court could’ve
simply said that. But it didn’t. The only logical conclusion is that
the Morse court viewed the insufficiency claim, but not the other
unpreserved claims, as amenable to plain error review because of
the state of the record.

13The court also cited three cases in which it had declined to review
unpreserved claims of error.

                                   40
  review.14 Morse, 168 Colo. at 497, 452 P.2d at 5. (The court ruled

  that the evidence was sufficient, so it went no farther.) To the

  extent, then, that Morse has anything to say about this issue, it

  actually supports the notion that plain error review applies to

  unpreserved insufficiency claims.

¶ 64   In any event, I think it was inadvisable for the McCoy majority

  to rely on a perceived inference (and, in my view, an incorrect one at

  that) from an almost fifty-year-old decision. A lot of water has gone

  under the bridge in the interim; our understanding and application

  of standards of review have changed a great deal. See Novotny,

  ¶¶ 17-22. In particular, we now have Crim. P. 52(b), and the

  supreme court has held that Colorado appellate courts will consider



  14The supreme court’s citation of and reliance on former Crim. P.
  37(b) to distinguish between unpreserved errors that it would not
  review and a claim of error that it would consider for plain error was
  consistent with its approach in numerous other cases of the era.
  See, e.g., Phillips v. People, 170 Colo. 520, 532-33, 462 P.2d 594,
  600 (1969), overruled on other grounds by People v. Helm, 633 P.2d
  1071 (Colo. 1981); Falgout v. People, 170 Colo. 32, 45, 459 P.2d
  572, 579 (1969); Morehead v. People, 167 Colo. 287, 291, 447 P.2d
  215, 217 (1968); Moore v. People, 164 Colo. 222, 230-32, 434 P.2d
  132, 136-37 (1967); Marshall v. People, 160 Colo. 323, 326-27, 417
  P.2d 491, 493 (1966); Moreno v. People, 156 Colo. 503, 506, 400
  P.2d 899, 900 (1965); Peterson v. People, 153 Colo. 23, 27-28, 384
  P.2d 460, 462 (1963).

                                    41
  claims of trial error (as opposed to structural error), even if of a

  constitutional nature, “only under the plain error standard.” Miller,

  113 P.3d at 749 (emphasis added) (citing Griego v. People, 19 P.3d

  1, 8 (Colo. 2001)); see also Reyna-Abarca v. People, 2017 CO 15,

  ¶ 37 (plain error review applies to unpreserved double jeopardy

  claims; Crim. P. 52(b) “does not distinguish between constitutional

  and nonconstitutional errors”); People v. Davis, 2015 CO 36M,

  ¶¶ 32, 37-41 (unanimously applying plain error review to a double

  jeopardy issue that turned, in part, on the sufficiency of the

  evidence); Martinez v. People, 2015 CO 16, ¶¶ 12-13 (constitutional

  errors are forfeited by lack of timely objection); Hagos, ¶ 14 (“[W]e

  review all other errors, constitutional and nonconstitutional, that

  were not preserved by objection for plain error.”) (emphasis

  added).15

¶ 65   The McCoy majority also cited two 2012 decisions from

  divisions of this court for the proposition that “a defendant need not

  preserve a sufficiency of the evidence claim by moving for a

  judgment of acquittal.” McCoy, ¶ 14. It’s true that, in the first of


  15The supreme court’s pronouncements in these cases were very
  broad, allowing of no exceptions.

                                     42
  those cases, People v. Randell, 2012 COA 108, the division declined

  to apply plain error review to an unpreserved insufficiency of the

  evidence claim. Id. at ¶ 31. But it did so because “[a] defendant

  may challenge the sufficiency of the evidence on appeal without

  moving for a judgment of acquittal in the trial court.” Id. at ¶ 30.

  While that is so, it’s no reason for rejecting plain error. Again, the

  fact a claim is reviewable says nothing about what standard of

  reversal applies.

¶ 66   In the other case, People v. Garcia, 2012 COA 79, the division

  rejected the People’s argument that the defendant hadn’t preserved

  his sufficiency claim for the reason that a defendant may challenge

  the sufficiency of the evidence on appeal even though he didn’t

  move for a judgment of acquittal in the trial court. Id. at ¶ 35. So

  that division, like the majority in McCoy and the division in Randell,

  also erroneously equated reviewability with preservation.

¶ 67   The McCoy majority distinguished other court of appeals

  decisions applying plain error review — People v. Harris, 633 P.2d

  1095 (Colo. App. 1981), and People v. Rice, 40 Colo. App. 357, 579

  P.2d 647 (1978) — on the basis they’d been decided under a former

  version of Crim. P. 33(a) that required a defendant to move for a


                                    43
  new trial to preserve issues for review. As the majority pointed out,

  under the current version of Crim. P. 33(a), the filing of a motion for

  a new trial is optional and a defendant “need not raise all the issues

  it intends to raise on appeal in [a motion for a new trial] to preserve

  them for appellate review.” McCoy, ¶ 19 (quoting Crim. P. 33(a)).

¶ 68   But the majority misunderstood the effect of this change.

  Under the prior version of Crim. P. 33(a), a defendant had to file a

  motion for a new trial to preserve any issue for appeal, including

  issues that the defendant had otherwise timely and clearly raised.

  In other words, the defendant had to re-raise an issue in a new trial

  motion to preserve it. The new version of the rule does away with

  that requirement, but it doesn’t do away with the requirement that

  a defendant must clearly raise an issue in the trial court at the

  appropriate time to preserve it for appellate review. So the change

  to Crim. P. 33(a) in no way supports the McCoy majority’s

  conclusion that unpreserved sufficiency claims aren’t subject to

  plain error review.16



  16If the McCoy majority’s characterization of Crim. P. 33(a) is to be
  taken at face value, a defendant wouldn’t be required to timely and
  properly raise any issue in the trial court to preserve it for appellate

                                     44
¶ 69   Lastly, the McCoy majority attempted to distinguish federal

  authority — which it acknowledged uniformly applies plain error

  review to unpreserved insufficiency claims — by asserting (in a

  manner that only begged the question) that federal courts require a

  party to move for a judgment of acquittal on particular insufficiency

  grounds under Fed. R. Crim. P. 29 to preserve such grounds for

  appellate review, while Colorado courts purportedly don’t require

  similar action under Crim. P. 29. McCoy, ¶¶ 23-24. But the federal

  cases merely point out that Fed. R. Crim. P. 29 governs the process

  for raising an insufficiency claim during and after trial. That’s true

  of Crim. P. 29 as well. So Crim. P. 29, like Fed. R. Crim. P. 29, is

  the vehicle through which a defendant ordinarily preserves an

  insufficiency claim. In this sense, Crim. P. 29 doesn’t differ from

  other rules governing the time and method for raising, and therefore




  review. After all, the rule doesn’t speak in terms of sufficiency of
  the evidence specifically, but of issues generally. Such a reading of
  the rule would be clearly contrary to long-standing and controlling
  precedent, not to mention Crim. P. 52(b).


                                    45
  preserving, an issue, as Judge Webb noted in his special

  concurrence. McCoy, ¶¶ 84-88.17

¶ 70   The McCoy majority gave no reason for applying Crim. P. 29

  differently than Fed. R. Crim. P. 29. Given that the rules are, at

  least in relevant part, substantially identical, and our supreme

  court is strongly inclined to interpret comparable Colorado and

  federal rules similarly, see, e.g., Warne v. Hall, 2016 CO 50, ¶ 12

  (rules of civil procedure); Crumb v. People, 230 P.3d 726, 731 n.5

  (Colo. 2010) (rules of criminal procedure); People v. Melendez, 102

  P.3d 315, 319 (Colo. 2004) (rules of evidence), I see no reason to

  view them as meaning two different things.




  17 Other rules providing procedures and deadlines for requesting
  relief include Crim. P. 5(a)(4) and 7(h) (requesting a preliminary
  hearing), Crim. P. 7(g) (moving for a bill of particulars), Crim. P.
  8(a)(1) (mandatory joinder of offenses), Crim. P. 11(e)(1) (pleading
  insanity defense), Crim. P. 12(b)(2) and (3) (raising certain defenses
  and objections), Crim. P. 14 (severance of charges or defendants),
  Crim. P. 15(a) (requesting depositions), Crim. P. 21 and 22 (change
  of venue or judge), Crim. P. 23 (requesting trial by jury), Crim P.
  24(b) (challenges to the jurors for cause) Crim. P. 24(c) (challenges
  to the jury pool), Crim. P. 30 (tendering and objecting to jury
  instructions), and Crim. P. 31 (polling the jury). A failure to follow
  these rules has consequences for reviewability and the standard of
  review on appeal. Why a failure to follow Crim. P. 29 should have
  no consequences, the McCoy majority didn’t really say.

                                    46
¶ 71   In attempting to distinguish the federal cases, the McCoy

  majority also overlooked the fact that those cases ultimately rely on

  the policies underlying the principle that a party must timely and

  clearly raise a claim of error in the trial court to preserve it for

  appellate review. See, e.g., Delgado, 672 F.3d at 331-32 (discussing

  the policies supporting plain error review of unpreserved claims in a

  sufficiency case). Colorado authority recognizes the purposes

  served by the plain error rule no less so than the federal cases.

  E.g., Hagos, ¶¶ 18, 23; People v. Lacallo, 2014 COA 78, ¶¶ 15-16.

¶ 72   It’s no answer to all this to say, as the McCoy majority did,

  that proof beyond a reasonable doubt is required by “the Due

  Process Clause of the Fourteenth Amendment.” McCoy, ¶ 7; see

  also id. at ¶ 35; Lacallo, ¶ 63 (Román, J., concurring in part and

  dissenting in part).18 After all, under binding Colorado precedent,



  18 Those adhering to the automatic reversal approach may be
  motivated by assuring that an actually innocent person won’t stand
  convicted. But the assumption underlying that motivation — that if
  proof of guilt is insufficient, the defendant is necessarily actually
  innocent — is incorrect. A finding of not guilty — that is, a finding
  that the prosecution didn’t meet its burden of proof — isn’t a
  finding of actual innocence. People v. Allee, 740 P.2d 1, 6-7 (Colo.
  1987); Roberts v. People, 103 Colo. 250, 261, 87 P.2d 251, 256
  (1938). Rather, conviction on a failure of sufficient proof is a due

                                      47
all unpreserved constitutional errors (that aren’t structural errors)

are reviewable only for plain error. Indeed, both the Colorado

Supreme Court and divisions of this court routinely review

unpreserved due process claims for plain error, including claims

that, because of some instructional defect or misstatement of the

law, the prosecution didn’t meet its burden of proof. E.g., Miller,

113 P.3d at 747-50; People v. Dunaway, 88 P.3d 619, 624-30 (Colo.

2004); Walker v. People, 932 P.2d 303, 310-11 (Colo. 1997); People

v. Clark, 2015 COA 44, ¶¶ 162-177; People v. Devorss, 277 P.3d

829, 834-35 (Colo. App. 2011); People v. Dunlap, 124 P.3d 780,

805-06 (Colo. App. 2004); see also Griego, 19 P.3d at 8 (“[W]hen a

trial court misinstructs the jury on an element of an offense, either

by omitting or misdescribing that element, that error is subject to

constitutional harmless or plain error analysis.”). And other courts

have held specifically that applying plain error review to

unpreserved insufficiency claims doesn’t violate the Due Process

Clause. E.g., Delgado, 672 F.3d at 331; cf. Carlisle v. United States,



process violation — a procedural failure. In the event an actually
innocent defendant stands convicted, the remedy is habeas corpus
(or perhaps a Crim. P. 35(c) motion based on ineffective assistance
of counsel or some other theory).

                                  48
  517 U.S. 416, 429 (1996) (it’s not a denial of due process to require

  a defendant to timely move for a judgment of acquittal under Fed.

  R. Crim. P. 29; a trial court can’t enter such a judgment outside the

  time permitted by the rule even if the defendant claims the evidence

  was insufficient).

¶ 73   Given all this, I find McCoy’s reasoning unpersuasive. Rather,

  I conclude that applying plain error review in this context is

  consistent with the plain language of Crim. P. 52(b), the purposes

  served by the plain error rule, and precedent.

                  B. This Case: Any Error Wasn’t Plain

¶ 74   When an unpreserved insufficiency claim is of the usual

  variety, review for plain error will, in the vast majority of cases,

  result in reversal if the evidence is insufficient: the insufficiency will

  be sufficiently obvious and the entry of judgment based on

  insufficient evidence will of course affect a defendant’s substantial

  rights. But see Delgado, 672 F.3d at 331-32 n.11 (explaining that

  the obviousness prong of plain error review may dictate affirmance

  even if the appellate court concludes that the evidence is

  insufficient where insufficiency is a “close call[]”). But defendant

  doesn’t present the usual insufficiency claim. Instead, he presents


                                      49
  a claim based on an interpretation of a statutory subsection that no

  Colorado appellate decision has yet addressed.

¶ 75   I’m willing to accept for now the majority’s ultimate conclusion

  that a prior Colorado felony conviction for cultivation of marijuana

  now counts as a prior felony conviction for habitual criminal

  purposes only if it involved more than six plants. That conclusion

  depends on the correctness of defendant’s argument that section

  18-1.3-801(3) applies not only to out-of-state drug convictions but

  also to Colorado drug convictions. While, as the majority

  concludes, defendant may be correct on that score, contrary to the

  majority, I’m not convinced that he is obviously so, for several

  reasons.

¶ 76   First, subsection (3) has been on the books for more than forty

  years, and despite Colorado’s drug laws having changed many

  times over that period, this is the first case of which we are aware in

  which a party has raised it.19 And this is so notwithstanding what

  must have been many thousands of drug convictions in that time.



  19The statute to which defendant pleaded guilty to violating in 1997
  was changed in relevant part in 2010. Ch. 259, sec. 6, § 18-18-
  406, 2010 Colo. Sess. Laws 1169.

                                    50
  That defendant’s argument seems never to have occurred to any

  other defendant screams “not obvious.”

¶ 77   Second, though the majority purports to rely on the plain

  language of subsection (3), that subsection is preceded by several

  subsections that use the same “if committed within this state”

  language only in conjunction with convictions under the laws of

  other states or the United States. § 18-1.3-801(1)(b)(II), (1.5),

  (2)(a)(I). Those subsections predate the General Assembly’s 1976

  addition of subsection (3), and the General Assembly may well have

  assumed in enacting subsection (3) that in using such language it

  was using it in the same limited way that it’s used in those other

  subsections.

¶ 78   Third, the General Assembly may well have intended such an

  extrajurisdictional limitation to give full credit to the judgments of

  prior Colorado legislatures as to what should be regarded as a

  felony.

¶ 79   Fourth, defendant’s claim required the district court to know

  that the cultivation statute had been changed, and how, and that

  this change brought into play a subsection of the habitual criminal




                                     51
  statute that no one had mentioned. I don’t think we should expect

  judges to be omniscient.

¶ 80   Under these circumstances, I don’t think it can fairly be said

  that the error was “so clear-cut, so obvious, that [the] trial judge

  should [have] be[en] able to avoid it without benefit of objection.”

  Lacallo, ¶ 22 (quoting People v. Pollard, 2013 COA 31, ¶ 39); see

  also DeChristopher, 695 F.3d at 1091-92 (discussing obviousness of

  an issue of statutory interpretation); Lacallo, ¶¶ 26-32 (same);

  People v. Heywood, 2014 COA 99, ¶ 36 (same). Because

  defendant’s claim of error fails the obviousness requirement of the

  plain error test, I would affirm the district court’s habitual criminal

  adjudication on this count (subject to the determination of

  excusable neglect on remand).20




  20Were I to agree with the majority’s decision to reverse on this
  count, I would also agree with its decision to remand for a new
  sentencing hearing in which the prosecution would have the
  opportunity to present evidence that defendant’s prior cultivation
  conviction involved more than six plants. See Monge v. California,
  524 U.S. 721, 734 (1998) (double jeopardy doesn’t preclude retrial
  on a prior conviction allegation in noncapital sentencing cases);
  People v. Porter, 2015 CO 34, ¶ 29 (same).

                                    52
