v. Butcher , 2018 COA 54 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
April 19, 2018
2018COA54
No. 15CA1816, People v. Butcher — Criminal Law —
Restitution; Criminal Procedure — Plain Error
Reviewing this restitution appeal for plain error, a division of
the court of appeals finds one obvious error involving the
calculation of postjudgment interest. However, exercising its
discretion granted by “may” in Crim. P. 52(b), the division affirms
because the error does not seriously affect the fairness, integrity, or
public reputation of judicial proceedings.
COLORADO COURT OF APPEALS 2018COA54
Court of Appeals No. 15CA1816
Teller County District Court Nos. 10CR105 & 11CR118
Honorable Edward S. Colt, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
David Michael Butcher,
Defendant-Appellant.
ORDER AFFIRMED
Division III
Opinion by JUDGE WEBB
Tow and Casebolt*, JJ., concur
Announced April 19, 2018
Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Dayna Vise, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 Often, when an appellate court identifies an obvious but
unpreserved trial error, the court will reverse under the plain error
doctrine of Crim. P. 52(b). Yet, if the error does not seriously affect
the fairness, integrity, or public reputation of judicial proceedings,
may the court, exercising its discretion, still decline to reverse? We
answer this novel question in Colorado “yes,” and do so here.
¶2 A jury convicted David Michael Butcher of two counts of
securities fraud and two counts of theft from at-risk adults.
Butcher appeals only the trial court’s amended restitution order,
and on the sole ground that the court erred in its award of
prejudgment and postjudgment interest. But he failed to raise
these alleged errors in the trial court, which limits relief to plain
error. Because the trial court’s single obvious error — accruing
postjudgment interest from the date of conviction rather than from
the date of the operative restitution order — does not seriously
affect the fairness, integrity, or public reputation of judicial
proceedings, we exercise our discretion and affirm.
I. Background
¶3 At the sentencing hearing in February 2013, three months
after Butcher’s conviction, the prosecutor submitted a proposed
1
restitution order that included prejudgment and postjudgment
interest. Attached to the proposed order were spreadsheets
reflecting the prosecutor’s calculations for each victim. Butcher
requested a hearing, without stating any specific objection. The
trial court agreed to delay the restitution hearing pending the
conclusion of an upcoming trial in a related case.
¶4 But neither party pursued restitution following resolution of
the related case. In January 2014, the trial court entered the
prosecutor’s proposed restitution order, in the principal amount of
$122,000. The court gave Butcher fifteen days to file a written
objection.
¶5 Fourteen months later, Butcher filed an objection to the
restitution order, asserting that he was entitled to offsets. But the
objection did not raise the amounts of prejudgment and
postjudgment interest awarded. Despite Butcher’s delay, the court
held a restitution hearing in September 2015.
¶6 At the hearing, the parties addressed only whether the amount
of principal should be reduced based on various offsets, including a
portion of the investment that one of the victims had recouped by
selling real property which Butcher had acquired with some of the
2
victims’ money. The court agreed that the principal should be
reduced by $8395.44 and directed the prosecutor to submit a
proposed amended restitution order. Still, no one said anything
about interest.
¶7 The prosecutor’s proposed amended restitution order adjusted
the amount of restitution to each victim, again including
prejudgment and postjudgment interest. The prosecutor also
attached spreadsheets reflecting the calculations. Butcher did not
object to the amended restitution order, and the court entered it.
II. Applicable Law
¶8 When a defendant steals money from a victim, the victim is
entitled to prejudgment interest on the restitution award, accruing
from the date of the loss to the date of the restitution order. See
Roberts v. People, 130 P.3d 1005, 1006-10 (Colo. 2006).
Prejudgment interest at the rate of eight percent annually is
reasonable. Id. at 1010; see also § 5-12-101, C.R.S. 2017 (“If there
is no agreement or provision of law for a different rate, the interest
on money shall be at the rate of eight percent per annum,
compounded annually.”). Prejudgment interest serves to make the
3
victim whole based on the loss of use of the money. Roberts, 130
P.3d at 1009.
¶9 The restitution statute in effect at the time provided that
victims were entitled to twelve percent annual postjudgment
interest on their restitution awards. See Ch. 318, sec. 2,
§ 18-1.3-603(4)(b)(I), 2002 Colo. Sess. Laws 1422. Postjudgment
interest serves to encourage expeditious payment of restitution.
Roberts, 130 P.3d at 1009.
¶ 10 Turning to the plain error standard, “[a] plain error is one that
is both ‘obvious and substantial.’” People v. Sandoval, 2018 CO 21,
¶ 11 (quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)). To
warrant reversal, the error must have “undermined the
fundamental fairness of the [proceeding] so as to cast serious doubt
on the reliability of the judgment.” People v. Davis, 2015 CO 36M,
¶ 32 (citing Miller, 113 P.3d at 750).
¶ 11 In sentencing cases, our supreme court has reversed for plain
error where “[t]he trial court’s imposition of an aggravated direct
sentence to community corrections based on judicial fact-finding
without a stipulation to that judicial factfinding by the defendant is
the kind of error that ‘undermine[s] the fundamental fairness’ of the
4
sentencing proceeding.” Sandoval, ¶ 15 (quoting Davis, ¶ 32). But
see People v. Banark, 155 P.3d 609, 611 (Colo. App. 2007) (“[W]e
perceive no reasonable possibility, much less a reasonable
probability, that defendant was actually prejudiced by the district
court’s [Blakely] error.”).
III. Butcher’s Unpreserved Contentions on Appeal
¶ 12 For the first time on appeal, Butcher raises the following
objections to the amounts of prejudgment and postjudgment
interest awarded.
 The amount of prejudgment interest in the amended
restitution order should be reduced based on the offsets to the
principal.
 The prejudgment interest rate of eight percent should have
applied to the period from the date of the loss to the date of
the amended restitution order.
 The postjudgment interest rate of twelve percent should have
applied only from the date of the amended restitution order.
 The interest should have been calculated as simple interest
rather than compounded monthly.
5
A. Did Butcher Waive These Objections?
¶ 13 According to the Attorney General, Butcher waived these
objections, for two reasons. The record supports the first reason
but the law does not support the second reason.
¶ 14 First, Butcher’s current challenges to the awarded amounts of
prejudgment and postjudgment interest would have applied with
equal force to the prosecutor’s original restitution request and the
trial court’s original restitution order. But he did not object to the
amounts of prejudgment and postjudgment interest in either the
prosecutor’s original request or the court’s original order. The
record supports this assertion, except as to the offsets that arose
after entry of the first order, which have been resolved.
¶ 15 Second, “[a] defendant waives his or her objections to the
amount of restitution by failing to go forward with evidence when
given the opportunity to do so.” People v. Martinez, 166 P.3d 223,
224 (Colo. App. 2007) (emphasis added); see also People v. Miller,
830 P.2d 1092, 1094 (Colo. App. 1991) (same). While this question
is closer, we decline to apply waiver because doing so would go
beyond the rationale of Miller, 830 P.2d 1092.
6
¶ 16 The Martinez division did not find a waiver. Instead, the
division paraphrased Miller. See Martinez, 166 P.3d at 224. In
Miller, the division said:
A defendant has the right to be heard
concerning matters in the presentence report
or victim impact statement which she believes
to be untrue. This includes the amount of
restitution. However, if the defendant fails to
show that the information is inaccurate or
untrue, the trial court is entitled to rely upon
the report or statement as submitted. Wolford
v. People, 178 Colo. 203, 496 P.2d 1011
(1972). Additionally, a defendant waives her
objection to the restitution amount by failing
to go forward with evidence which would place
that amount in issue when she is offered the
opportunity to do so. People v. Powell, 748
P.2d 1355 (Colo. App. 1987).
830 P.2d at 1094.
¶ 17 So, Miller stands only for the unremarkable proposition that
where appellate review depends on factual findings and a defendant
spurns the opportunity to make an appropriate record, the
defendant waives appellate review. See, e.g., People v. Alameno, 193
P.3d 830, 834 (Colo. 2008) (review of a suppression ruling calls for
factual findings that appellate courts are not positioned to make);
People v. Huynh, 98 P.3d 907, 913 (Colo. App. 2004) (same).
7
¶ 18 In contrast, Butcher’s objections regarding the amount of
interest awarded do not require further factual development. All
information necessary for appellate review appears in the
spreadsheets attached to the initial and amended restitution orders.
¶ 19 In sum, we decline the Attorney General’s invitation to find
waiver and turn to Butcher’s plea for plain error review.
B. Should We Exercise Our Discretion to Reverse for Plain Error?
¶ 20 The Attorney General argues against plain error review, again
on two grounds. This time, the law and the record support the
Attorney General on both grounds.
¶ 21 First, the Attorney General points out that the word “may” in
Crim. P. 52(b) suggests plain error review is a matter of discretion,
not of right. See Woldt v. People, 64 P.3d 256, 269 (Colo. 2003)
(explaining that the plain meaning of the word “may” usually
indicates discretion).
¶ 22 True, our supreme court has never directly addressed the
issue.1 But in People v. Gingles, 2014 COA 163, ¶ 32, the division
1In at least one older case, however, the supreme court has said it
would “elect not” to address an unpreserved issue. Morse v. People,
168 Colo. 494, 497, 452 P.2d 3, 5 (1969).
8
held that Crim. P. 52(b) affords “discretion to address errors that
both are ‘plain’ and ‘affect[] substantial rights.’” (Alteration in
original.) See also People v. Valencia, 169 P.3d 212, 221 (Colo. App.
2007) (“Crim. P. 52(b) provides us with discretion to notice ‘[p]lain
errors or defects’ that ‘were not brought to the attention of the
court’ . . . .”) (citation omitted), abrogated in part on other grounds
by Brendlin v. California, 551 U.S. 249 (2007).
¶ 23 Crim. P. 52(b) is very similar to its federal counterpart.
Compare Fed. R. Crim. P. 52(b) (“A plain error that affects
substantial rights may be considered even though it was not
brought to the court’s attention.”), with Crim. P. 52(b) (“Plain errors
or defects affecting substantial rights may be noticed although they
were not brought to the attention of the court.”). Because of this
similarity, federal law interpreting the federal rule of criminal
procedure is informative.2 See Warne v. Hall, 2016 CO 50, ¶¶ 12-13
(noting the desirability of interpreting similar Colorado and federal
2“Because the rules are similar, and because the supreme court
adopted Crim. P. 52(b) in 1961, seventeen years after Congress
adopted Fed. R. Crim. P. 52(b), it seems clear that the Colorado rule
was patterned after the federal rule.” People v. Greer, 262 P.3d 920,
937 (Colo. App. 2011) (J. Jones, J., specially concurring).
9
rules similarly); Crumb v. People, 230 P.3d 726, 731 n.5 (Colo.
2010) (same).
¶ 24 The discretionary view aligns with United States Supreme
Court precedent. The Court first “articulated the standard that
should guide the exercise of remedial discretion under Rule 52(b)
almost 70 years ago in United States v. Atkinson, 297 U.S. 157 . . .
(1936).” Nguyen v. United States, 539 U.S. 69, 85 (2003).
“Congress then codified that standard in Rule 52(b).” Id.
¶ 25 In United States v. Olano, 507 U.S. 725, 735 (1993), the Court
said, “Rule 52(b) is permissive, not mandatory. If the forfeited error
is ‘plain’ and ‘affect[s] substantial rights,’ the court of appeals has
authority to order correction, but is not required to do so.” Then it
discussed the principles that “guide the exercise of remedial
discretion under Rule 52(b)” and noted that without those limiting
principles “discretion . . . would be illusory.” Id. at 736-37.
¶ 26 Following Olano, we conclude that relief under Crim. P. 52(b)
is a matter of discretion, not of right.
¶ 27 Second, the Attorney General continues, exercising discretion
should be informed by asking whether any errors “seriously affect
the fairness, integrity or public reputation of judicial proceedings.”
10
United States v. Young, 470 U.S. 1, 15 (1985) (quoting Atkinson, 297
U.S. at 160). Yet, the parties have not cited a case, nor have we
found one, in which our supreme court has expressly adopted or
rejected this test.
¶ 28 A closer look shows that, on the one hand, in Hagos v. People,
2012 CO 63, ¶ 18, the court quoted the Young formulation. See
also Stackhouse v. People, 2015 CO 48, ¶ 34 (Plain error requires
reversal if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” (quoting Puckett v. United
States, 556 U.S. 129, 135 (2009))) (emphasis omitted). But, on the
other hand, the court also said that plain error review leads to
reversal if it “so undermined the fundamental fairness of the trial
itself so as to cast serious doubt on the reliability of the judgment of
conviction.” Hagos, ¶ 14 (citation omitted).
¶ 29 Given these statements, one might ask whether our supreme
court has simply collapsed the “seriously affects the fairness,
integrity or public reputation of judicial proceedings” test into
whether plain errors “cast serious doubt on the reliability of the
judgment of conviction.” One might even inquire whether the court
11
implicitly reasoned that every unreliable conviction has such a
serious effect.
¶ 30 But a restitution error does not taint the underlying judgment
of conviction. As the court explained in Sanoff v. People, 187 P.3d
576, 578 (Colo. 2008):
[T]he revised statutory structure . . .
undermines the continuing validity of our
earlier conclusion that the amount of
restitution must be part of a judgment of
conviction. In fact, by specifying that an order
of conviction need only include a
determination whether the defendant is
obligated to pay restitution, without
designation of the amount, the General
Assembly has made clear its intent that the
amount of the defendant’s liability no longer be
a required component of a final judgment of
conviction . . . . [B]y express legislative action,
a subsequent determination of the amount of
restitution owed by a defendant, as
distinguished from an order simply finding her
liable to pay restitution, has been severed from
the meaning of the term “sentence,” as
contemplated by Crim. P. 32, and therefore
from her judgment of conviction. Neither
subsequent proceedings to determine, nor an
order assessing, a specific amount of
restitution directly affects that judgment.
So, looking no further than the “reliability of the judgment of
conviction” test could suggest a categorical rule foreclosing plain
error review of all errors involving the amount of restitution.
12
¶ 31 Our supreme court has never addressed plain error when
faced with a restitution error. In People v. Ortiz, 2016 COA 58,
¶ 13, the division “review[ed] [the] defendant’s contention for plain
error because he failed to argue in the district court that the state
patrol was not a victim for restitution purposes.” Still, neither Ortiz
nor any other court of appeals opinion answers the question
whether all unpreserved but obvious errors in the amount of a
restitution award demand plain error reversal.
¶ 32 But is trying to answer this question like a solution in search
of a problem? We know that mathematics is “an exact science.”
Chartrand v. Brace, 16 Colo. 19, 34, 26 P. 152, 157 (1891). From
that perspective, every computational error in a restitution award
that is more than de minimus could be said to undermine the
fundamental fairness of the sentencing proceeding. And therein lies
the problem.
¶ 33 Embracing hastily such a broad approach would ignore the
limitation that plain error restricts an appellate court “to
correct[ing] particularly egregious errors.” Wilson v. People, 743
P.2d 415, 420 (Colo. 1987). Yet, how do we draw a line between de
minimus and “particularly egregious?” To do so, we circle back to
13
whether errors in calculating interest on a restitution award
seriously affect the fairness, integrity, or public reputation of
judicial proceedings.3
¶ 34 Several federal circuits have rejected plain error claims that
fail to meet the fourth element, without examining the other
elements. See United States v. Maciel-Vasquez, 458 F.3d 994, 996
(9th Cir. 2006) (“[The court] need not . . . construe condition [of
supervised release for purposes of plain error review], because any
error or prejudice caused by the district court’s decision to impose
this condition did not seriously affect the fairness, integrity, or
public reputation of the judicial proceedings.”); United States v.
Keeling, 235 F.3d 533, 538 (10th Cir. 2000) (“Even if the first three
elements of the plain error test are satisfied, where the evidence on
a misdescribed or omitted element of the offense is overwhelming,
3 Specially concurring in People v. Greer, 262 P.3d 920, 938 (Colo.
App. 2011), Judge Jones said, “under the current state of the law in
Colorado, I do not have the authority to apply the fourth prong
articulated in Olano to an unpreserved claim of error. Whether that
prong should be applied in plain error review under Crim. P. 52(b)
is for the Colorado Supreme Court to decide.” In our view, however,
our supreme court’s citation of the Young formulation in Hagos and
Stackhouse — both announced after Greer — leave us free to follow
federal authority.
14
the fourth element, that the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings, is not.”);
United States v. Hunerlach, 197 F.3d 1059, 1069 (11th Cir. 1999)
(“Even if we were to assume that the district court committed plain
error, . . . Appellant must show that the error ‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’”)
(citation omitted).
¶ 35 Even so, in this case we eschew that approach because
considering whether the trial court erred, and, if so, whether any
error was obvious, shows that the relief to which Butcher would be
entitled — while more than de minimus — is limited. We apply the
error and obviousness factors as follows.
 The original restitution order and the amended restitution
order awarded identical amounts of prejudgment interest.
Butcher now argues that the prejudgment interest in the
amended restitution order should have been reduced to
account for the offset to the principal based on the victim’s
sale of the property. The record indicates that the victim
recouped some of the investment in January 2015, which
would have affected the amount of prejudgment interest, but
15
only if it had been calculated through the date of the amended
order, some eight months later. See Roberts, 130 P.3d at 1009
(noting prejudgment interest is based on the loss of use of the
stolen money). And because the prosecutor took this offset
into account when calculating postjudgment interest, we
discern no error, and therefore no plain error, on this issue.
 As for Butcher’s argument that the interest should have been
simple interest rather than compounded monthly, the
prosecutor’s proposed amended restitution orders list twelve
percent as the “Rate of Interest” and “0.01” as the “monthly
rate.” As well, the interest accrual goes up slightly each
month on the same principal amount. That interest was being
compounded monthly, from the date of the conviction, was
obvious. Still, the postjudgment interest statute in effect at
the time did not specify whether interest should be simple
interest or compounded interest. See 2002 Colo. Sess. Laws
at 1422. (It has since been amended to specify that it should
be simple interest. See § 18-1.3-603(4)(b)(I), C.R.S. 2017.)
Thus, error, if any, would not have been so clear cut and
obvious that the trial court should have addressed the issue
16
sua sponte. See People v. Valdez, 2014 COA 125, ¶ 27 (where
case law on an issue is unsettled, an error is not obvious).
 Butcher also argues that the amended restitution order
incorrectly calculated prejudgment interest (at eight percent)
through the date of the conviction rather than the date of the
amended restitution order and that postjudgment interest (at
twelve percent) was calculated from the date of the conviction
rather than after the date of the amended restitution order.
The order recites that twelve percent interest was calculated
“from the time of conviction.” In terms of postjudgment
interest, the statute at issue at the time provided that the
defendant owes interest “from the date of the entry of the
order” at the rate of twelve percent annually. 2002 Colo. Sess.
Laws at 1422; see also Roberts, 130 P.3d at 1006
(Prejudgment interest should be awarded from the time the
money is stolen “to the time a restitution award is entered.”).
Therefore, we conclude that the trial court erred, and the error
was obvious. See Sandoval, ¶ 12 (“We have previously
explained that ‘[f]or an error to be obvious, the action
challenged on appeal ordinarily must contravene (1) a clear
17
statutory command; (2) a well-settled legal principle; or (3)
Colorado case law. Scott v. People, 2017 CO 16, ¶ 16.”).4
¶ 36 Now, we are back to whether this one obvious error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings. Viewing the facts through the lens of the following
precedent shows three reasons why it does not.
 “Generally, courts have relied on the presence of
‘overwhelming and uncontroverted evidence’ of guilt as a basis
for finding that a plain error did not seriously affect the
fairness, integrity or public reputation of judicial proceedings.”
United States v. Hayat, 710 F.3d 875, 910 (9th Cir. 2013). The
evidence of the principal amount Butcher owed as restitution,
except for the modest offset that the trial court allowed, was
uncontroverted.
4 The Attorney General suggests that the trial court may have
exercised its discretion to increase the rate of prejudgment interest
from eight percent to twelve percent from the date of the conviction
until the restitution orders were entered. The record in no way
indicates that the trial court exercised its discretion in that way,
nor did the prosecutor request that it do so. Rather, the record
strongly suggests that prejudgment interest at the rate of eight
percent was applied up to the date of the conviction, and that
postjudgment interest at the rate of twelve percent was applied to
the period following the date of conviction.
18
 “[A] sentencing error seriously affects the fairness, integrity, or
public reputation of judicial proceedings when a court’s error
results in imposition of a sentence which is not authorized by
law.” United States v. Page, 232 F.3d 536, 544 (6th Cir. 2000).
Butcher has never disputed that the trial court had statutory
authority to include interest in the restitution award.
 “When we apply the fourth element of plain error review to
forfeited sentencing errors, the ‘key concern” is ‘whether
correct application of the sentencing laws would likely
significantly reduce the length of the sentence.’” United States
v. Figueroa-Labrada, 720 F.3d 1258, 1268 (10th Cir. 2013)
(emphasis added) (quoting United States v. Cordery, 656 F.3d
1103, 1108 (10th Cir. 2011)). The one obvious error at most
increased the amount Butcher owes by about 12.27%. (The
amended restitution order calculated interest from November
2012 until September 2015 at twelve percent rather than eight
19
percent, making the difference four percent over thirty-five
months, compounded annually.)5
¶ 37 For these reasons, we discern no serious effect on the fairness,
integrity, or public reputation of judicial proceedings.6
¶ 38 Lastly, what about Ortiz? After all, we need say no more than
that “one division of the court of appeals is not bound by a decision
of another division.” People v. Abu-Nantambu-El, 2017 COA 154,
¶ 88. Still, “we give such decisions considerable deference.” People
v. Smoots, 2013 COA 152, ¶ 20.
¶ 39 Ortiz does not indicate whether the Attorney General had
challenged plain error review, as she does here. Perhaps for that
5 The magnitude could be even less — accrual at eight percent
rather than twelve percent for fifteen months (November 2012
through January 2014). Butcher cites no authority supporting his
assumption that reconsideration of the January order in September
2015 alters the “date of the restitution order” for purposes of
treating further interest as postjudgment. Nor have we found a
Colorado statute or decision saying that a later modification of the
amount of an otherwise valid judgment alters the date of the
original judgment for this purpose.
6 Of course, a mere interest error does not implicate “the stigma of a
conviction and the burden of prison time.” People v. Stewart, 55
P.3d 107, 119 (Colo. 2002). But see People v. Hill, 296 P.2d 121,
125 n.3 (Colo. App. 2011) (a defendant could have a legal
malpractice claim against attorney who rendered ineffective
assistance concerning restitution).
20
reason, the division did not ask whether the error seriously affected
the fairness, integrity, or public reputation of judicial proceedings.
And in any event, the error alleged in Ortiz would have wiped out
the entire restitution award, not just — as here — a small part of
the interest.
¶ 40 In conclusion, we exercise our discretion under Crim. P. 52(b)
and decline to disturb the postjudgment interest award for plain
error.7
IV. Conclusion
¶ 41 The order is affirmed.
JUDGE TOW and JUDGE CASEBOLT concur.
7 In saying this much, we take care to point out what we are not
saying: that a restitution error of about $7500 to $15,000 — the
magnitude of error at issue — could never satisfy the “seriously”
test. For example, such an error might constitute the entire
restitution award or double the amount awarded. We leave the
resolution of such cases for another day.
21