Scott v. People
2017 CO 16
| Colo. | 2017Background
- William Costello Scott was convicted by a jury of aggravated robbery (menaced with a deadly weapon) and felony menacing arising from the same robbery incident.
- Scott did not object at trial under Crim. P. 12(b)(2) or otherwise raise a double jeopardy/merger argument in the trial court.
- On direct appeal Scott argued for the first time that felony menacing is a lesser-included offense of aggravated robbery such that the two convictions should have merged under double jeopardy principles.
- A split Colorado Court of Appeals panel declined to reach the unpreserved double jeopardy claim, adopting the view that such claims may not be raised for the first time on appeal; a concurring judge would have reviewed for plain error and denied relief based on People v. Sisneros.
- The Colorado Supreme Court granted certiorari, held that unpreserved double jeopardy claims may be raised on appeal (and are ordinarily reviewed for plain error), but affirmed Scott’s convictions because any error was not obvious in light of existing appellate precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an unpreserved double jeopardy claim can be raised for the first time on appeal | Scott: Crim. P. 12(b)(2) does not require preserving a future double jeopardy claim at the pleadings stage; Crim. P. 52(b) permits plain-error review on appeal | People: Defendant must raise double jeopardy at trial under Crim. P. 12(b)(2) or it is waived | Court: Unpreserved double jeopardy claims may be raised on appeal and should ordinarily be reviewed for plain error (Crim. P. 52(b)) |
| Whether convictions for aggravated robbery (menaced) and menacing plainly erred by violating double jeopardy (i.e., merger) | Scott: Felony menacing is a lesser-included offense of aggravated robbery under § 18-1-408(5)(c); convictions should merge | People: Sisneros and other precedent hold menacing does not merge into aggravated robbery; no plain error | Court: Even if menacing were a lesser-included offense, no plain error: error was not obvious given controlling appellate precedent (Sisneros); affirmed convictions |
Key Cases Cited
- People v. Sisneros, 606 P.2d 1317 (Colo. App. 1980) (held menacing did not merge into aggravated robbery)
- People v. Cagle, 751 P.2d 614 (Colo. 1988) (statement that court won’t consider constitutional issues raised first on appeal treated as non-controlling/dictum here)
- People v. Miller, 113 P.3d 743 (Colo. 2005) (plain-error standard: must be obvious, substantial, and undermine confidence in outcome)
- Hagos v. People, 288 P.3d 116 (Colo. 2012) (Crim. P. 52(b) does not distinguish constitutional vs. nonconstitutional errors)
- People v. Lucero, 272 P.3d 1063 (Colo. 2012) (procedural context referenced in certiorari question)
- People v. Pollard, 307 P.3d 1124 (Colo. App. 2013) (discussion of when an error is "obvious" for plain-error review)
- People v. Ujaama, 302 P.3d 296 (Colo. App. 2012) (noting how an error may be obvious when addressed by appellate precedent)