En Banc
¶ 1 In this case we review two issues: (1) whether a double jeopardy claim can be raised for the first time on appeal and (2) whether defendant William Costello Scott’s convictions for both aggravatеd robbery-menaced with a deadly weapon (“aggravated robbery-menaced victim”) and menacing amounted to plain error.
1
In light of our opinion in Reyna-Abarca v. People,
I. Facts and Procedural History
¶ 2 The People charged Scott with several counts arising from a robbery. Among those counts were one count of aggravated robbery-menaced victim and one cоunt of menacing. Scott did not object to these counts pursuant to Crim. P. 12(b)(2), which provides, as pertinent here, that objections based on defects in the charging document may be raised only by motion and thаt the failure to present such an objection constitutes a waiver thereof.
*834 ¶ 3 The case proceeded to trial, and a jury-found Scott guilty of, among other things, aggravated robbery-menacеd victim and menacing. At no point prior to or during the sentencing proceedings did Scott contend that his convictions on these two counts violated double jeopardy principles under the United States or Colorado Constitutions.
¶ 4 Scott appealed and argued for the first time that pursuant to section 18-l-408(5)(e), C.R.S. (2016), felony menacing is a lesser included offense of aggravated robbery-menacеd victim and therefore, his convictions on both counts violated double jeopardy principles and should have merged. The People disagreed, noting that in People v. Sisneros,
¶ 5 In an unpublished, split opinion, the division majority declined to address Scott’s foregoing double jeopardy claim because he had not presented it to the trial court. People v. Scott, No. 08CA2327, slip op. at 12,
¶ 6 Judge Casebolt specially concurred. As pertinent here, he disagreed with the majority’s refusal to address Scott’s above-described double jeopardy argument. Id. at 14. Judge Casebolt would have reviewed that contention for plain error. Id. He would have concluded, however, that based on Sisneros, whiсh had concluded that a menacing conviction does not merge into an aggravated robbery conviction, Scott was not entitled to relief. Id.
¶ 7 Scott petitioned this court for certiorari review, and we granted his petition.
II. Analysis
¶8 We first discuss whether courts can review unpreserved double jeopardy claims for the first time on appeal. Concluding that Crim. P. 52(b) provides a mechanism for such review, wе proceed to review Scott’s claim for plain error.
A. Appellate Review of Unpreserved Double Jeopardy Claims
¶ 9 In Reyna-Abarca, also decided today, we concluded that defendants can raise unpreserved double jeopardy clаims for the first time on appeal and that courts should ordinarily review such claims for plain error. Reyna-Abarca, ¶ 2.
¶ 10 In so holding, we rejected the People’s argument, which they also assert in this casе, that a defendant must raise a double jeopardy claim at trial pursuant to Crim. P. 12(b)(2), or else it is waived. As we explained at length in Reyna-Abarca, ¶¶ 38-45, Crim. P. 12(b)(2) is inapplicable to double jeopardy claims bеcause (1) prosecutors are permitted to charge in an information multiple claims arising from the same set of facts; (2) a double jeopardy claim does not arise until the defendant is convicted of multiplicitous counts; (3) Crim. P. 12(b)(2) does not require a defendant to file a motion regarding any error that might later flow from the charging document; and (4) no authority supports the People’s position thаt a defendant must “bookmark” a future double jeopardy claim at the pleadings stage.
¶ 11 The same reasoning applies here. In reaching this conclusion, we recognize that the division majority’s dеcision not to review Scott’s unpreserved double jeopardy claim was consistent with the view of several other court of appeals divisions that had declined to review unpreserved constitutional claims raised for the first time on appeal. See, e.g., People v. Cooper,
¶ 12 Instead, we concluded that Crim. P. 52(b) applies here. See id. at ¶ 37. Crim: P. 52(b) provides, “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” This rule does not distinguish between constitutional and non-constitutional errors, and we perceive no reason to read in such a distinction here. See Hagos v. People,
¶ 13 Wе thus conclude that the majority below erred in declining to address Scott’s unpreserved double jeopardy claim and, instead, should have reviewed that claim for plain error. This, however, does not end our inquiry because the question remains whether the trial court plainly erred in not merging Scott’s convictions for aggravated robbery-menaced victim and menacing. We ten next to that question.
B. Merits of Scott’s Double Jeopardy Claim
¶ 14 Scott contends that pursuant to section 18-l-408(5)(c), menacing is a lesser included offense of aggravated robbery-menaced victim because the former differs from the latter only in the respect that а lesser level of culpability suffices to establish menacing than suffices to establish aggravated robbery-menaced victim. We need not decide this question, however, because even if menacing were a lesser included offense of aggravated robbery-menaced victim pursuant to section 18-l-408(5)(c), we cannot say that the tidal court plainly erred in not raising and addressing that issue sua sponte.
¶ 15 As noted above, Crim. P. 52(b) allows an appellate court to notice “Cpjlain errors or defects affecting substantial rights.” Plain error review addresses error that is both obvious and substantial and that so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. See People v. Miller,
¶ 16 To qualify as plain error, an error must generally be so obvious thаt a trial judge should be able to avoid it without the benefit of an objection. People v. Pollard,
¶ 17 Conversely, an error is generally not obvious when nothing in Colorado statutory or prior case law would have alerted the trial court to the error. See People v. Wentling,
¶ 18 Here, at the time of Scott’s trial, Sisneros, which had rejected the precise argument that Scott makes in this case, see Sisneros,
*836 III. Conclusion
¶ 19 For these reasons, we affirm the judgment below, albeit on grounds different from those on which the division’s majority relied.
Notes
. Specifically, we granted certiorari to review the following issue:
Whether, contrary to this court’s decision in Lucero v. People,272 P.3d 1063 (Colo.2012), the court of appeals erred by refusing to address whether the menacing conviction was a lesser included offense of aggravated robbery-menaced with a deadly weapon, and failing to order that the menacing conviction be vacated.