unpreserved constitutional claim in Colorado

2024See Martinez v. People , 244 P.3d 135, 140 (Colo. 2010) (vacating the portion of an opinion that reached the merits of an unpreserved constitutional claim because, "[t]o preserve a Colorado Constitutional argument for appeal, . . . a defendant must make an objection sufficiently specific to call the attention of the trial court to the potential Colorado Constitutional error"). ---------

2024See Martinez v. People , 244 P.3d 135, 140 (Colo. 2010) (vacating the portion of an opinion that reached the merits of an unpreserved constitutional claim because, "[t]o preserve a Colorado Constitutional argument for appeal, . . . a defendant must make an objection sufficiently specific to call the attention of the trial court to the potential Colorado Constitutional error"). [3] The United States Supreme Court has abolished the watershed rule exception because "[c]ontinuing to articulate a theoretical exception that never actually applies in practice offers false hope to defendants, distorts

2009People v. Miller, 113 P.3d 743, 750 (Colo.2005).

2009People v. Miller, 113 P.3d 743, 750 (Colo.2005).

2026Hinojos-Mendoza v. People, 169 P.3d 662, 667-68 (Colo. 2007), abrogated on other grounds as recognized by Phillips v. People, 2019 CO 72, ¶¶ 32-33 .

2018Id. at 667-68 .

2025Standard of Review and Applicable Law ¶ 34 The parties agree the issue is unpreserved but dispute what standard of review applies. ¶ 35 We have the discretion to address an unpreserved constitutional claim “when we believe that doing so would best serve the goals of efficiency and judicial economy.” Fuentes-Espinoza v. People, 2017 CO 98, ¶ 19 , 408 P.3d 445, 448 ; People v. Mountjoy, 2016 COA 86, ¶¶ 35, 39-40 , 431 P.3d 631, 639 (applying this principle to as-applied and facial challenges), aff’d on other grounds, 2018 CO 92M , 430 P.3d 389 . ¶ 36 And we apply the plain error standard when we

2025Standard of Review and Applicable Law ¶ 34 The parties agree the issue is unpreserved but dispute what standard of review applies. ¶ 35 We have the discretion to address an unpreserved constitutional claim “when we believe that doing so would best serve the goals of efficiency and judicial economy.” Fuentes-Espinoza v. People, 2017 CO 98, ¶ 19 , 408 P.3d 445, 448 ; People v. Mountjoy, 2016 COA 86, ¶¶ 35, 39-40 , 431 P.3d 631, 639 (applying this principle to as-applied and facial challenges), aff’d on other grounds, 2018 CO 92M , 430 P.3d 389 . ¶ 36 And we apply the plain error standard when we

2024See Martinez v. People , 244 P.3d 135, 140 (Colo. 2010) (vacating the portion of an opinion that reached the merits of an unpreserved constitutional claim because, "[t]o preserve a Colorado Constitutional argument for appeal, . . . a defendant must make an objection sufficiently specific to call the attention of the trial court to the potential Colorado Constitutional error"). [3] The United States Supreme Court has abolished the watershed rule exception because "[c]ontinuing to articulate a theoretical exception that never actually applies in practice offers false hope to defendants, distorts

2019See People v. Houser, 2013 COA 11, ¶ 35 (concluding that an appellate court may, as a matter of discretion, take up an unpreserved constitutional challenge when doing so would further judicial economy). 17 ¶ 34 “Equal protection of the laws is guaranteed by the fourteenth amendment of the United States Constitution and by the due process clause in article II, section 25, of the Colorado Constitution.” People v. Alexander, 797 P.2d 1250, 1255 (Colo. 1990) (quoting People v. Rickstrew, 775 P.2d 570, 574 (Colo. 1989)).

2019See People v. Houser, 2013 COA 11, ¶ 35 (concluding that an appellate court may, as a matter of discretion, take up an unpreserved constitutional challenge when doing so would further judicial economy). 17 ¶ 34 “Equal protection of the laws is guaranteed by the fourteenth amendment of the United States Constitution and by the due process clause in article II, section 25, of the Colorado Constitution.” People v. Alexander, 797 P.2d 1250, 1255 (Colo. 1990) (quoting People v. Rickstrew, 775 P.2d 570, 574 (Colo. 1989)).

2019See People v. Houser, 2013 COA 11, ¶ 35 (concluding that an appellate court may, as a matter of discretion, take up an unpreserved constitutional challenge when doing so would further judicial economy). 17 ¶ 34 “Equal protection of the laws is guaranteed by the fourteenth amendment of the United States Constitution and by the due process clause in article II, section 25, of the Colorado Constitution.” People v. Alexander, 797 P.2d 1250, 1255 (Colo. 1990) (quoting People v. Rickstrew, 775 P.2d 570, 574 (Colo. 1989)).

2019Under the Colorado Constitution, “equal protection of the laws requires that statutory classifications of crimes be based on differences that are real in fact and reasonably related to the general purposes of criminal legislation.” People v. Marcy, 628 P.2d 69, 74 (Colo. 1981).

2016See, e.g. , People v. Banks , 2012 COA 157 , ¶ 117, 412 P.3d 417 (reviewing the defendant's unpreserved constitutional sentencing challenge in part because "the remedy for the error would be merely vacating the sentence in part and remanding for resentencing, not reversing and ordering a retrial"), aff'd in part and rev'd in part on other grounds by People v. Tate , 2015 CO 42 , 352 P.3d 959 . ¶ 41 But this view of judicial economy only goes so far.

2016See, e.g. , People v. Banks , 2012 COA 157 , ¶ 117, 412 P.3d 417 (reviewing the defendant's unpreserved constitutional sentencing challenge in part because "the remedy for the error would be merely vacating the sentence in part and remanding for resentencing, not reversing and ordering a retrial"), aff'd in part and rev'd in part on other grounds by People v. Tate , 2015 CO 42 , 352 P.3d 959 . ¶ 41 But this view of judicial economy only goes so far.

2016See, e.g. , People v. Banks , 2012 COA 157 , ¶ 117, 412 P.3d 417 (reviewing the defendant's unpreserved constitutional sentencing challenge in part because "the remedy for the error would be merely vacating the sentence in part and remanding for resentencing, not reversing and ordering a retrial"), aff'd in part and rev'd in part on other grounds by People v. Tate , 2015 CO 42 , 352 P.3d 959 . ¶ 41 But this view of judicial economy only goes so far.

2015To warrant reversal, an unpreserved constitutional error must have "so undermined the fundamental fairness of the [trial] as to cast serious doubt on the reliability of the judgment." People v. Sepulveda, 65 P.3d 1002, 1006 (Colo.2003).

2013See People v. Allman, 2012 COA 212, ¶ 7 , - P.3d -, -, Plain error review requires that we determine whether (1) there was an error, (2) the error was "plain," or clear and obvious, and (8) the error was substantial, meaning that it so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction.

2013Jones, J., specially concurring) 3 30 The position that a constitutional challenge to a statute should not be entertained for the first time on appeal derives from People v. Lesney, 855 P.2d 1364, 1366 (Colo.1993) (holding that a constitutional challenge to a statute "is not properly preserved for appellate review if, as here, it is not presented to the trial court and is raised for the first time on appeal"), and People v. Cagle, 751 P.2d 614, 619 (Colo.1988) (stating in dictum that "[Ilt is axiomatic that this court will not consider constitutional issues raised for the first time on appeal"

2013The Allman division recognized "two lines of authority in Colorado on this question in criminal cases." Id.; see People v. Greer, 262 P.3d 920, 932 (Colo.App.2011) (describing Colorado law on reviewing an unpreserved constitutional challenge as in a "muddled state.") (J.

2013Jones, J., specially concurring) 3 30 The position that a constitutional challenge to a statute should not be entertained for the first time on appeal derives from People v. Lesney, 855 P.2d 1364, 1366 (Colo.1993) (holding that a constitutional challenge to a statute "is not properly preserved for appellate review if, as here, it is not presented to the trial court and is raised for the first time on appeal"), and People v. Cagle, 751 P.2d 614, 619 (Colo.1988) (stating in dictum that "[Ilt is axiomatic that this court will not consider constitutional issues raised for the first time on appeal"

2010People v. O'Connell, 134 P.3d 460, 464 (Colo.App.2005); cf. United States v. Vonn, 535 U.S. 55, 59 , 122 S.Ct. 1043 , 152 L.Ed.2d 90 (2002) (concluding that unobject-ed-to error in trial court's guilty plea colloquy was reversible only upon a showing of plain error that affected the defendant's substantial rights, and that a reviewing court may consult the whole record when considering the effect of any error on substantial rights); see Mosly, 672 N.W.2d at 901 (reversal is "not warranted on the basis of an unpreserved constitutional error unless the error was plain on the record and affected

2010People v. O'Connell, 134 P.3d 460, 464 (Colo.App.2005); cf. United States v. Vonn, 535 U.S. 55, 59 , 122 S.Ct. 1043 , 152 L.Ed.2d 90 (2002) (concluding that unobject-ed-to error in trial court's guilty plea colloquy was reversible only upon a showing of plain error that affected the defendant's substantial rights, and that a reviewing court may consult the whole record when considering the effect of any error on substantial rights); see Mosly, 672 N.W.2d at 901 (reversal is "not warranted on the basis of an unpreserved constitutional error unless the error was plain on the record and affected

2010People v. O'Connell, 134 P.3d 460, 464 (Colo.App.2005); cf. United States v. Vonn, 535 U.S. 55, 59 , 122 S.Ct. 1043 , 152 L.Ed.2d 90 (2002) (concluding that unobject-ed-to error in trial court's guilty plea colloquy was reversible only upon a showing of plain error that affected the defendant's substantial rights, and that a reviewing court may consult the whole record when considering the effect of any error on substantial rights); see Mosly, 672 N.W.2d at 901 (reversal is "not warranted on the basis of an unpreserved constitutional error unless the error was plain on the record and affected

2010People v. O'Connell, 134 P.3d 460, 464 (Colo.App.2005); cf. United States v. Vonn, 535 U.S. 55, 59 , 122 S.Ct. 1043 , 152 L.Ed.2d 90 (2002) (concluding that unobject-ed-to error in trial court's guilty plea colloquy was reversible only upon a showing of plain error that affected the defendant's substantial rights, and that a reviewing court may consult the whole record when considering the effect of any error on substantial rights); see Mosly, 672 N.W.2d at 901 (reversal is "not warranted on the basis of an unpreserved constitutional error unless the error was plain on the record and affected