People v. Crabtree.
2024 CO 40. No. 22SC589. Linnebur Error—Plain Error Review—Plainness Prong—Time of Trial Versus Time of Appeal.
June 10, 2024
Recognizing that it erred in the remedy it meted out in Linnebur v. People, 2020 CO 79M ¶ 2, 476 P.3d 734, 735, the Supreme Court held that a trial court’s error in failing to present the element of the defendant’s relevant convictions to the jury in a felony DUI case is not structural and is, instead, a trial error. Therefore, it does not warrant automatic reversal; rather, it is subject to an appropriate case-specific, outcome-determinative standard of reversal. Because the error here was not preserved, the Court reviewed for plain error under Crim. P. 52(b).
The Court further reaffirmed that, to qualify for relief under Crim. P. 52(b), an error must be plain (i.e., obvious or clear cut) at the time of trial. And given the different analytical frameworks in Colorado’s plain error cases, on the one hand, and the US Supreme Court’s plain error cases, on the other, the Court declined to adopt the time-of-appeal rule ushered in by Johnson v. United States, 520 U.S. 461, 467–68 (1997) and Henderson v. United States, 568 U.S. 266, 273 (2013). The differences between the two standards demonstrate the danger in selectively borrowing a single aspect of the federal plain error standard (the temporal scope of the plainness prong) while disregarding the rest.
The Court carefully considered replacing Colorado’s plain error standard in its entirety with the federal plain error standard. In the end, though, the Court heeded the wisdom of the aphorism “if it ain’t broke, don’t fix it.” Colorado’s plain error standard has served its state courts well, and neither the parties in this case nor the wider bar have expressed interest in the federal approach, much less identified deficiencies justifying a complete rebuild of the applicable methodology. Such an overhaul would inevitably be terribly disruptive—unnecessarily so given the postconviction remedy available under Crim. P. 35(c)(1) when a “significant change in the law” occurs while a direct appeal is pending.
The court of appeals in this case correctly reviewed for plain error. But it incorrectly found plain error based on the plainness of the error at the time of appeal, even though it is undisputed that the error was not plain at the time of trial. Because the error was not plain at the time of trial, Crabtree was not entitled to relief under Crim. P. 52(b). Accordingly, the judgment was reversed, and the case was remanded to the court of appeals with instructions to return it to the trial court for reinstatement of Crabtree’s felony DUI conviction and sentence.