People v. Lacallo , 338 P.3d 442 ( 2014 )

Opinion by

JUDGE WEBB

{1 Defendant, Enrique Alejandro Lacallo, appeals the judgment of conviction entered on a jury verdict finding him guilty of obstructing a law enforcement animal, felony menacing, rioting in a detention facility, engaging in a riot, possession of contraband, criminal mischief, and disobeying a public safety order during a riot. He also appeals his sentence.

12 This appeal primarily involves the conviction for violating the general riot statute, section 18-9-104(1), C.R.S.2018, and the definition of riot included in this statute. Addressing an undeveloped question in Colorado, we consider applying plain error review to a sufficiency of the evidence challenge under narrow cireumstances: where trial counsel conceded that the evidence was sufficient (except for a factual issue not raised in this appeal), and appellate review of the evidence depends on a legal interpretation of a statutory element raised for the first time by appellate counsel. In this limited context, we agree with the Attorney General that the sufficiency issue presented was unpreserved, and is subject to only plain error review¹ We affirm the judgment of conviction, but vacate the sentence and remand for resen-tencing.

I. Background

{3 According to the prosecution's evidence, defendant and three other inmates refused to leave a common area of the Jefferson County jail and lockdown. Before being returned to their cells, they damaged the common area. During the disruption, visiting members' of the public were evacuated from the jail.

II. Sufficiency of the Evidence

T4 Defendant first contends the evidence was insufficient to support his conviction for engaging in a riot under section 18-9-104(1). He argues that because this charge rested solely on acts which occurred inside a detention facility, those acts cannot constitute a "public disturbance" under the definition of "riot" in section 18-9-101(2), C.R.S.20183. Because defendant did not raise this contention below, we apply the plain error standard of review and conclude that the error alleged was not obvious under existing law. Thus, we do not address the merits of this contention.

A. Standard of Review and Preservation

{5 In moving for a judgment of acquittal, defense counsel did not broadly challenge the sufficiency of the evidence. To the contrary, as to the rioting in a detention facility count, he said, "I'm not going to belabor the whole point because I think they['ve] got me on the rioting part ... but they don't have him for purposes of this on employing a deadly weapon ... [because] nobody can put one of those knife-like shards of glass in [defendant's] hand." (Emphasis added.) Then as to the count for engaging in a riot, he said, "again, my argument is the same, your honor," and reiterated the shards assertion.

T6 Thus, counsel did not expressly or even impliedly raise the issue now argued-that the evidence was insufficient to show a public disturbance-as a matter of either fact or law² See People v. Rogers, 2012 COA 192, 1[ 24, 317 P.3d 1280 ("An issue is unpreserved for review when an objection or request was made to the trial court, but on different grounds than those raised on appeal."). Thus, we must decide whether the trial court plainly erred "in failing sua sponte to direct defendant's acquittal based on that ground." State v. Serrano, 855 Or. 172, 183-84, 824 P.3d 1274 (2014)³

T7 Even so, in Colorado sufficiency of the evidence may be raised for the first time on appeal. See Morse v. People, 168 Colo. 494, 498, 452 P.2d 3, 5 (1969) ("The one new matter urged upon us in this court which can be adequately reviewed on the basis of the record now before us concerns the sufficiency of the evidence."); People v. Garcia, 2012 COA 79, 296 P.3d 285 ("A defendant may challenge the sufficiency of the evidence without moving for a judgment of acquittal in the trial court."); People v. Duncan, 109 P.3d 1044, 1045 (Colo.App.2004) ("[A] sufficiency of the evidence claim may be raised for the first time on appeal. ..."); People v. Peay, 5 P.3d 898, 400 (Colo.App.2000) ("reject[ing] the People's contention that defendant failed to preserve the issue of the sufficiency of the evidence ... because he failed to raise it in his motion for acquittal").

T8 Despite this uniformity, Colorado courts addressing unpreserved sufficiency challenges have not applied a consistent standard of review. When a criminal defendant , fails to raise an issue below, review is limited to plain error. See generally People v. Miller, 118 P.3d 748, 749-50 (Colo.2005).

19 Even before Miller, some divisions of this court had applied plain error review to sufficiency claims. See People v. Rice, 40 Colo.App. 357, 361, 579 P.2d 647, 650 (1978) ("[DJlefendant did not ... make any claims on his motion for acquittal that the evidence was insufficient to link him to these crimes. Since we find no plain error with respect to these convictions, we do not address the issue of the sufficiency of the evidence relative to them."); see also People v. Harris, 638 P.2d 1095, 1099 (Colo.App.1981) ("[Tlo allege insufficiency of evidence as to an indispensable element of a crime is to assert plain error."). More recently, and despite Miller, other divisions have expressly declined to do so. See People v. Randell, 2012 COA 108, 1 830, 297 P.3d 989 ("[Wle reject the People's contention that the insufficient evidence claims defendant failed to raise in the trial court should only be reviewed for plain error."); People v. McBride, 228 P.3d 216, 226 (Colo.App.2009) (same).

(10 A third category of Colorado cases applies a de novo seope of review to unpre-served sufficiency claims, without considering applicability of the plain error standard of review. See, eg., Garcia, 1 85; Duncan, 109 P.3d at 1045. Such cases do not inform our analysis because de novo review can be applied under plain error. See People v. Wylie, 260 P.3d 57, 60 (Colo.App.2010) ("Because defendant did not raise this issue in the trial court, we review for plain error.... To the extent defendant's arguments require us to interpret statutory provisions, we do so de novo." (citations omitted)); see also United States v. Garza-Lopez, 410 F.3d 268, 272-73 (5th Cir.2005) ("In reviewing Garza-Loper's claim of plain error, we begin by determining whether the district court committed an error and whether that error was plain. In resolving Garza-Lopez's claim that the district court erred by misapplying § 2L 1.2(b)(1)(A), we review the district court's interpretation and application of the Guidelines de novo." (citation omitted)); Whittle v. State, 77 A.3d 239, 248 (Del.2013) ("We review alleged prosecutorial misconduct, such as improper vouching, for plain error where the defendant did not object to the asserted prosecutorial misconduct at trial, and the trial judge failed to intervene sua sponte. In plain error review, we examine the record de novo to determine whether prosecutorial misconduct occurred.") (footnote omitted)⁴

{11 Our supreme court has not spoken to this question.⁵ Lacking its guidance, we join with Rice and Harris in applying the plain error standard of review, based on the following four reasons.

112 First, the wording of Crim. P. 52(b) does not support an exception for sufficiency claims that a defendant fails to bring "to the attention of the court." True, a conviction based on insufficient evidence would be a very grave error. But analogous Fed. R.Crim.P. 52(b) "does not permit exceptions based on the gravity of the asserted error." United States v. Turrietta, 696 F.3d 972, 976 n. 9 (10th Cir.2012); see Johnson v. United States, 520 U.S. 461, 466, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) ("the seriousness of the error claimed does not remove consideration of it from the ambit of the Federal Rules of Criminal Procedure.").

{ 13 Second, Rice and Harris are in accord with the position of federal courts. See 2A Charles Alan Wright, Federal Practice & Procedure § 469 (3d ed.2000) (referencing the "well-settled doctrine that if no motion for judgment of acquittal was made ... an appellate court cannot review the sufficiency | of the evidence, except under the plain error doctrine").

€ 14 Third, many states apply a plain error standard of review to unpreserved sufficiency of the evidence claims.⁶ Much of the seemingly contrary authority-like the third category of Colorado cases-reviews unpre-served sufficiency of the evidence claims under a de novo scope of review, without considering the plain error standard of review.⁷

{15 Fourth, applying only plain error review to unpreserved sufficiency claims furthers the policies supporting this limited review. As explained in Hagos v. People, 2012 CO 63, 288 P.3d 116:

Plain error review reflects "a careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed." Plain error review allows the opportunity to reverse convictions in cases presenting particularly egregious errors, but reversals must be rare to maintain adequate motivation among trial participants to seek a fair and accurate trial the first time.

Id. at 128 (citation omitted). Requiring defendants to raise issues before the trial court "conserve[s] judicial resources by alerting the trial court to a particular issue in order to give the court an opportunity to correct any error." People v. Pahl, 169 P.3d 169, 183 (Colo.App.2006). For example, the trial court could exercise its discretion and allow the prosecution to present additional evidence. People v. Waters,641 P.2d 292, 294 (Colo.App.1981) ("The prosecutor's failure to introduce evidence prior to closing his case was an inadvertent oversight, and the court's action in permitting him to reopen his casein-chief was within its discretion.").⁸

T16 Raising sufficiency before the trial court conserves judicial resources because a ruling that the evidence was insufficient would obviate the need for the defendant to appeal any other issue concerning that charge. Duncan, 109 P.3d at 1047 ("Because there is insufficient evidence that the prosecution proved every element of the offense charged, defendant's conviction must be reversed. Accordingly, we need not address defendant's remaining arguments.").⁹ See People v. Houser, 2013 COA 11, ¶36, 337 P.3d 1238 (judicial economy includes "the efficiency that could have been achieved by raising the issue earlier").

1 17 Defendant does not raise any countervailing policy considerations. Instead, he argues that applying plain error review to un-preserved sufficiency claims would deny him due process, because the United States Constitution "requires proof of guilt beyond a reasonable doubt for a conviction to stand." Defendant's reliance on Duncan to support this statement is misplaced. While the division reviewed an unpreserved sufficiency claim de novo, it did so without addressing any purported conflict between due process and plain error review. Id. at 1045. Merely using the de novo scope of review does not establish it as a due process requirement.¹⁰

118 And even if de novo review of the sufficiency of the evidence has due process implications, defendant's constitutional argument against plain error still fails under Miller, 113 P.3d at 749 (holding plain error review appropriate for unpreserved claims, including those asserting constitutional violations). See Hagos, 114 (with certain exceptions not relevant here, appellate courts review all "errors, constitutional and non-constitutional, that were not preserved by objection for plain error").¹¹

119 But does applying the plain error standard of review to unpreserved sufficiency claims have any practical significance? The answer depends on which of the three plain error questions is the focus of appellate inquiry: whether error occurred; if so, whether it was obvious; and if both, whether the error casts serious doubt on the reliability of the judgment of conviction. See, eg., People v. Duram, 272 P.3d 1084, 1094 (Colo.App.2011) (listing plain error factors). Here, applying plain error matters because our inquiry is limited to obviousness.

{20 Many federal circuits have expressed uncertainty over exactly how plain error review should be applied when weighing the sufficiency of the evidence. For example, in United States v. White, 1 F.3d 13, 17 (D.C.Cir.1993), the court explained:

We admit we are not sure exactly what standard is implied by plain error review on a sufficiency of the evidence challenge. Presumably review should be more deferential than under the usual standard under which we determine only "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 448 U.S. 807, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). But it is hard to imagine that more deferential standard.¹²

McBride, 228 P.3d at 226, used similar reasoning to reject plain error review: the Jackson "standard is so high, and the consequences to the rare defendant able to satisfy it so severe, that we apply it even where (as here) a defendant failed to preserve the challenge by raising it in the trial court."

T{21 Under the plain error standard of review, weighing the sufficiency of the evidence would implicate both the first question-did the trial court err in not sua sponte dismissing the case when the prosecution rested, and the third question-is the reliability of the judgment of conviction in doubt? But because our focus is on the intermediate question-was the error obvious-we save for another day deciding whether analyzing either of the other questions is different when sufficiency arises for the first time on appeal. See United States v. Meadows, 91 F.3d 851, 855 (7th Cir.1996) ("We do not review the sufficiency of the evidence de novo when there was no objection at trial; it must be 'plain' (Le., clear or obvious) that there was insufficient evidence.").

122 Under the plain error standard of review, the error must "be so clear-cut, so obvious, that a trial judge should be able to avoid it without benefit of objection." People v. Pollard, 2018 COA 81, 1 89, 307 P.3d 1124. As explained in United States v. Delgado, 672 F.3d 320, 382 (5th Cir.2012):

Even assuming that the final two prongs of the plain-error analysis are always satisfied when a defendant is convicted on insufficient evidence, prong two-the requirement that the error be plain, clear, or obvious-must be satisfied, and this requirement imposes a greater burden on forfeited claims.¹³

See also United States v. Smart, 135 Fed,. Appx. 337, 341 (11th Cir.2005) (unpublished) ("Assuming without deciding whether the district court committed error, we conclude that [the defendant's} claim of insufficiency as a matter of law fails under the second prong of the plain error test."); State v. Samples, 272 P.3d 788, 791 (Utah Ct.App.2012) ("Because this case comes before us on plain error review ... we need only decide whether the alleged insufficiency of the evidence was such that it was an obvious and fundamental error to submit the case to the jury." (internal quotation marks and citation omitted)).

{23 In many sufficiency cases, if the record convinced the appellate court that the trial court had erred in not sua sponte dismissing the charges, the record would likely also show that this error was obvious. But here, obviousness depends on the meaning of "public disturbance," a legal issue that must be resolved before weighing the evidence under a de novo seope of review to determine if the trial court erred in not sua sponte dismissing the general riot count. And "[we need not decide whether the court actually erred if it is clear that the alleged error was not obvious." People v. Vigil, 251 P.3d 442, 447 (Colo.App.2010); see Garcia, 148 ("[Elven if we assume the instruction was erroneous, we are not persuaded ... that any instructional error here was obvious and substantial.").¹⁴

24 Therefore, reviewing defendant's un-preserved sufficiency of the evidence challenge for plain error, we begin with obviousness, and go no further.

B. Applying Plain Error

125 As indicated, defendant asserts that the prosecution failed to prove a "public disturbance" under section 18-9-101(2) because a detention facility is not a place open to the public The Attorney General responds that the location of the riot is immaterial-such a disturbance occurs if a riot affects members of the public, which defendant's conduct did when jail visitors had to be evacuated. We conclude that because defendant's argument fails the obviousness requirement of plain error, we need not reach this question.

T 26 Generally, an error is not obvious, and therefore cannot be plain, where "nothing in our statutes or previous case law would have alerted the court" to the error. People v. Mendoza, 818 P.3d 687, 641 n. 4 (Colo.App.2011); see People v. Zubiate, 2013 COA 69, 1 24 ("An error may be obvious if the issue has been decided by a division of this court or the Colorado Supreme Court, or if the trial court has erroneously applied statutory law.").

27 Consistent with this approach, federal courts have held that error, if any, in an unpreserved sufficiency of the evidence claim is not plain if the legal principles with which the evidence must be tested are undecided. In United States v. Kimler, 335 F.3d 1182, 1142 (10th Cir.2008), for example, the court explained that authority cited by the defendant did not establish the broad rule of evidence that he was asserting. And "[t] he only two cireuits to have considered the issue" did not apply such a rule. Id. Then it rejected the defendant's unpreserved sufficiency claim because, even assuming that his evidentiary challenge had merit, the error was not plain. Id.

{ 28 Similarly, in United States v. Ramos, Arenas, 596 F.3d 783, 786 (10th Cir.2010), the court held that even if "the government presented insufficient evidence of intent to defraud, that error is neither clear nor obvious" because "[wlhether a conviction ... requires evidence of intent to defraud is an open question in this cireuit." See also Uni-ed States v. McRae, 702 F.3d 806, 885-86 (5th Cir.2012) (rejecting unpreserved sufficiency challenge because "[wle are not aware of any United States Supreme Court or Fifth Circuit precedent addressing this issue, much less resolving the issue in [defendant's] favor."); United States v. Merino, 545 Fed.Appx. 867, 869 (11th Cir.2013) (unpublished) (rejecting unpreserved sufficiency challenge because "error, if any, is not plain or obvious because no court has interpreted the law as [the defendant] urges").

129 No Colorado case has interpreted the phrase "public disturbance" under section 18-9-101(2). Nor do Colorado cases provide a commonly accepted definition for the term "public" that would have alerted the trial court to alleged error arising from defendant's interpretation. See, eg., Wycoff v. Grace Cmty. Church of Assemblies of God, 251 P.3d 1260, 12783 (Colo.App.2010) (public means "the people as a whole: populace, masses").

130 Neither party cited section 18-1-901(8)(n), C.R.S.2018, which defines a "public place" as:

[A] place to which the public or a substantial number of the public has access, and includes but is not limited to highways, transportation facilities, schools, places of amusement, parks, playgrounds, and the common areas of public and private buildings and facilities.

But this definition does not make the alleged error in failing sua sponte to dismiss this count obvious. Had the General Assembly intended for section 18-9-101(2) to apply to only a "public place," rather than to a "public disturbance," regardless of the location, it could have said so. See Vigil v. Franklin, 103 P.3d 322, 330 (Colo.2004) ("[HJad the General Assembly intended to limit the preemption of landowner liability by retaining the open and obvious danger doctrine, it could have done so."). Thus, because determining the meaning of "public disturbance" under existing Colorado authority would be difficult, "the alleged error cannot be regarded as plain or obvious." See Vigil, 251 P.3d at 447

{31 Still, an unpreserved error might be obvious if it involves a well-settled legal principle that numerous courts elsewhere have uniformly embraced. See Pollard, T 41. But here, defendant has not cited out-of-state authority supporting his narrow interpretation -of "public disturbance," nor have we found any.¹⁵

T{32 For these reasons, we conclude that error, if any, was not obvious. Based on this conclusion, we need not address the merits of defendant's sufficiency of the evidence claim. See People v. Hagos, 250 P.3d 596, 620 (Colo.App.2009) ("Because no error was plain or obvious at the time of defendant's trial, it follows that there is no plain error here.").

III. Merger

[ 83 Alternatively, defendant contends that even if sufficient evidence supports his con-vietion for engaging in a riot, because it is a lesser included offense of rioting in a detention center, the convictions should merge. The different elements of these two offenses defeat this contention.

T 34 Whether an offense is lesser included or nonincluded is determined, as a matter of law, using the strict element test. People v. Lowry, 160 P.3d 396, 398 (Colo.App.2007). "If the greater offense includes all of the elements of the lesser offense plus one or more additional elements, it is fair to say that the lesser offense is included within the greater offense." Meads v. People, 78 P.3d 290, 294 (Colo.2003). But if "each offense necessarily requires proof of at least one additional fact which the other does not, the strict elements test is not satisfied and a presumption arises that convictions for both offenses is consistent with legislative intent." People v. Leske, 957 P.2d 10830, 1086 (Colo.1998) (internal quotation marks omitted).

1 35 Applying this test here, section 18-8-211(1), C.R.98.2013, provides:

A person confined in any detention facility within the state commits active participation in a riot when he, with two or more other persons, actively participates in violent conduct that creates grave danger of, or does cause, damage to property or injury to persons and substantially obstructs the performance of institutional functions, or commands, induces, entreats, or otherwise attempts to persuade others to engage in such conduct.

(Emphasis added.)

36 By contrast, section 18-9-104(1) provides that "[a] person commits an offense if he or she engages in a riot." And a "riot" is defined as "a public disturbance involving an assemblage of three or more persons which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs the performance of any governmental function." § 18-9-101(2).

137 Thus, each of these two offenses requires proof of one element that the other does not. Under section 18-8-211(1), the offender must have been confined in a detention facility. But under section 18-9-104(1), the offender-who need not have been confined-must have caused a public distur-banee. Thus, engaging in a riot is not a lesser included offense of rioting in a detention facility,. See Meads, 78 P.3d at 294 (upholding the defendant's convictions where establishing all elements of the greater offense did not necessarily establish all elements of the lesser offense).

138 Accordingly, we conclude that defendant's convictions for engaging in a riot and rioting in a detention center do not merge.

IV. Crime of Violence Sentence

139 The Attorney General concedes defendant's contention that the trial court erred by applying crime of violence for sentencing to his conviction for engaging in a riot. We agree, vacate his entire sentence, and remand for resentencing.

140 We review a trial court's sentencing decision for abuse of discretion. People v. Robinson, 187 P.3d 1166, 1177 (Colo.App. 2008). "A trial court necessarily abuses its discretion where it misconstrues or misapplies the law." Id. If a trial court's "erroneous assumption of what the law required influenced its decision" to impose a certain sentence, "we must vacate the sentence in its entirety and remand for resentencing." People v. Simon, 100 P.3d 487, 496 (Colo.App.2004).

141 Generally, when a defendant is convicted of multiple offenses, the trial court has discretion to impose consecutive or concurrent sentences. Juhl v. People, 172 P.3d 896, 900 (Colo.2007). But if two or more of the offenses are crimes of violence, a court's sentencing discretion is limited by section 18-1.3-406(1)(a), C.R.S.2018, which requires that "[al person convicted of two or more separate crimes of violence arising out of the same incident shall be sentenced for such crimes so that the sentences are served consecutively rather than concurrently." People v. Trujillo, 114 P.3d 27, 38 (Colo.App.2004). And under section 18-1.3-406(1)(a), "[aluy person convicted of a crime of violence shall be sentenced ... for a term of incarceration of at least the midpoint in, but not more than twice the maximum of, the presumptive range." K

{42 Here, the trial court imposed a consecutive six-year sentence for engaging in a riot, after the prosecution told the court that this offense was a crime of violence. But section 18-9-104(1) does not define engaging in a riot as a crime of violence. Nor is it listed in section 18-1.3-406. Thus, neither an increased sentencing range nor a consecutive sentence was mandated.

143 Accordingly, we vacate defendant's entire sentence and remand for a new sentencing hearing.

V. Presentence Confinement Credit

{44 The Attorney General also agrees with defendant, as do we, that the trial court erred in calculating defendant's presentence confinement credit (PSCC). However, defendant and the Attorney General disagree as to the correct amount of PSCC. Although we have vacated defendant's entire sentence, we address this contention because it will arise on resentencing.

145 Whether a defendant is entitled to PSCC is reviewed de novo. People v. Roy, 252 P.3d 24, 27 (Colo.App.2010).

[ 46 Under section 18-1.8-405, C.R.8.2018, "[a] person who is confined for an offense prior to the imposition of sentence for said offense is entitled to credit against the term of his or her sentence for the entire period of such confinement." To receive PSCC, "an offender must have been actually confined and there must have been a substantial nexus between the confinement and the charge for which the sentence is ultimately imposed." Beecroft v. People, 874 P.2d 1041, 1044 (Colo.1994) (interpreting a predecessor statute); see Schubert v. People, 698 P.2d 788, 795 (Colo.1985) (same).

{47 Where, as here, a defendant faces charges in more than one case during his confinement, a substantial nexus "means that the defendant would have remained confined in the same judicial district on the charge for | which credit is sought in the absence of any other charge." Massey v. People, 736 P.2d 19, 238 (Colo.1987); see also Schubert, 698 P.2d at 795 (the question in this context is: "Was the presentence confinement actually caused by the charge or conduct for which the offender is to be sentenced?").

$48 The defendant bears the burden of establishing an entitlement to PSCC under the statute. See Massey, 736 P.2d at 28; People v. Freeman, 785 P.2d 879, 881 (Colo.1987). '

{49 Here, the trial court credited defendant with 438 days of PSCC using his sentencing date-November 22, 2011-and the date when the arrest warrant was issued-June 3, 2010.¹⁶ Both defendant and the Attorney General agree that this calculation should have been 588 days.

150 Yet, defendant further argues that PSCC should have been based on the earlier date of the incident-March 5, 2010-be-cause then he was being detained in the Jefferson County jail, albeit on federal charges. The Attorney General responds that shortly after the incident, defendant was transferred to the El Paso County jail, where he continued to be held on the federal charges until they were later dismissed. According to the Attorney General, defendant should only receive PSCC for the time he was confined in Jefferson County on the charges in this case. When the federal charges were dismissed on February 24, 2011, defendant was returned to Jefferson County. And at that time, the warrant in this case was served.

151 We agree with the Attorney General because defendant has failed to establish a substantial nexus between the charges in this case and his confinement in El Paso County. The record does not show that he would have been released from confinement in El Paso County, had the charges in this case been dismissed. To the contrary, he was released from that confinement only once the federal charges were dismissed. Then the authorities returned him to Jefferson County, where the arrest warrant in this case was served on him.

Nor has defendant shown that the charges in this case "delayed the resolution" of the federal charges, "prevented the defendant's release" from El Paso County, "or contributed in any way to his confinement outside of Jefferson County." Freeman, 735 P.2d at 881; see Massey, 736 P.2d at 28 ("The defendant has not proven ... that the Pitkin County charges prevented the defendant's release from the Mesa County jail or contributed to his confinement outside of Pit-kin County. Absent such proof, the defendant is not entitled to an award of [PSCC] . for periods of incarceration in Mesa County.").

53 Accordingly, on remand for resentenc-ing, the trial court shall calculate defendant's PSCC based solely on the time he has been confined in Jefferson County for the charges in this case. See People v. Henry, 2013 COA 104, ¶ 16, 810 P.8d 281 (directing the court on remand to amend the mittimus to reflect certain amount of PSCC).

VIL Conclusion

The judgment of conviction is affirmed. The sentences are vacated and the case is remanded for resentencing.

Booras, J., concurs Roman, J., concurs in part and dissents in part

1 . Because of the unusual circumstances presented, we respectfully disagree with the dissent's suggestion that we have adopted a "sea change." Cf. People v. Gutierrez, 222 P.3d 925, 945-46 (Colo.2009) (characterizing evolution of the "good faith" exception to the exclusionary rule as a "sea change").

2 . Because the Attorney General did not argue that by telling the trial court "they{'ve] got me on the rioting part," defendant waived any sufficiency challenge or invited the court's alleged error, we decline to address these issues sua sponte. See State v. Greene, 147 P.3d 957, 959 n. 3 (Utah Ct.App.2006) ("[We do not determine whether the invited error doctrine applies to Defendant's insufficient evidence claim here because the issue was not fully briefed by the parties nor urged by the State on appeal.").

3 . We express no opinion whether, absent such a concession, a general assertion that the evidence was insufficient would preserve a legal question concerning interpretation of an element, as is presented here.

4 . No Colorado criminal case has articulated the difference between standard of review and scope of review. But while

the terms "scope of review" and "standard of review" are sometimes used interchangeably, there is undoubtedly a difference between them. Our "scope of review" relates to what we will consider in determining whether [an error was] committed{.] Our "standard of review" relates to how much, if any, deference to afford ... in determining whether an error was made.

Porter v. Comm'r, 130 T.C. 115, 144 n. 1 (2008) (Wherry, J., concurring in the result). See also Morrison v. Commonwealth, 538 Pa. 122, 646 A.2d 565, 570 (1994) ("'Scope of review' and 'standard of review' are often-albeit erroneously-used interchangeably. The two terms carry distinct meanings and should not be substituted for one another. 'Scope of review' refers to 'the confines within which an appellate court must conduct its examination.' In other words, it refers to the matters (or 'what') the appellate court is permitted to examine. In contrast, 'standard of review' refers to the manner in which (or 'how") that examination is conducted." (citation omitted)). For these reasons, plain error review and de novo review are in no way mutually exclusive. See, e.g., United States v. Rounds, 749 F.3d 326, 337 (5th Cir.2014) ('The plain-error standard requires first that there be error, a question we consider de novo.").

5 . In both People v. Roggow, 2013 CO 70, ¶13, 318 P.3d 446, and Dempsey v. People, 117 P.3d 800, 807 (Colo.2005), because insufficiency of the evidence was raised below, People v. Roggow, 2011 WL 2199694 (Colo.App. No. O9CA1719, May 26, 2011) (not published pursuant to C.A.R. 35(f)), Dempsey, 117 P.3d at 804, plain error review could not have been applied.

6 . See, eg., Ziegler v. State, 886 So.2d 127, 143 (Ala.Crim.App.2003); Shafer v. State, 456 P.2d 466, 467-68 (Alaska 1969); Monroe v. State, 652 A.2d 560, 563 (Del.1995); Brannon v. United States, 43 A.3d 936, 939 (D.C.2012); State v. Rodrigues, 6 Haw.App. 580, 733 P.2d 1222, 1223 (1987); People v. Horn, 279 Mich.App. 31, 755 N.W.2d 212, 220 (2008); Jones v. State, 724 So.2d 427, 430 (Miss.Ct.App.1998); State v. Swinford, 677 S.W.2d 417, 418 (Mo.Ct.App.1984); State v. Thompson, 244 Neb. 375, 507 N.W.2d 253, 270 (1993); State v. Bullitt, 166 Ohio App.3d 365, 850 N.E.2d 801, 804 (2006); State v. Reynolds, 250 Or.App. 516, 280 P.3d 1046, 1054 (2012); State v. Meza, 263 P.3d 424, 426 (Utah Ct.App.2011); State v. Savo, 139 Vt. 644, 433 A.2d 292, 293 (1981); but see State v. Thomas, 62 Conn.App. 356, 772 A.2d 611, 615 (2001); Pena v. State, 294 P.3d 13, 18 n. 2 (Wyo.2013).

7 . See, eg., State v. Wright, 154 Idaho 157, 295 P.3d 1016, 1017 n. 1 (App.2013); State v. Foster, 298 Kan. 348, 312 P.3d 364, 368 (2013); Commonwealth v. Joyner, 467 Mass. 176, 4 N.E.3d 282, 288 (2014); State v. Criswell, 370 Mont. 511, 305 P.3d 760, 763 (2013); State v. Stein, 127 N.M. 362, 981 P.2d 295, 297 (App.1999); State v. Martinez, - N.C.App. -, 749 S.E.2d 512, 514 (2013); Musgrove v. State, 422 S.W.3d 13, 15 n. 1 (Tex.App.2013).

8 . Other jurisdictions have recognized trial court discretion to do so. United States v. Rouse, 111 F.3d 561, 573 (8th Cir.1997) ("The trial court has broad discretion to allow the prosecution to reopen to establish an element of an offense after the defendant has moved for judgment of acquittal."); see also Commonwealth v. Hurley, 455 Mass. 53, 913 N.E.2d 850, 863-64 (2009) (collecting cases).

9 . The specter of a post-conviction proceeding asserting ineffective assistance of counsel sometimes factors into the judicial economy calculus. See Estep v. People, 753 P.2d 1241, 1248 (Colo.1988) ("to require the defendant to pursue that means of redress would not serve the interests of substantial justice and judicial economy' (citation omitted)). Even so, this factor has only displaced plain error analysis where counsel was clearly ineffective. See id.; People v. Baker, 104 P.3d 893, 898 (Colo.2005). Otherwise, the supreme court has not avoided plain error review based on the possibility of a post-conviction proceeding. See Hagos v. People, 2012 CO 63, 121, 288 P.3d 116 ("A prior determination ... that an error was not so prejudicial as to cast serious doubt upon the reliability of the judgment of conviction, and therefore was not plain error, does not control a later determination of whether the error undermined confidence in the judgment of conviction under Strickland."). And here, because of the absence of Colorado law, as discussed in the following subsection, analysis of trial counsel's failure to raise sufficiency below would differ from trial counsels' patent untimeliness at issue in Estep and Baker.

10 . See, eg., Delgado, 672 F.3d at 331 ("[The Constitution does not require that the sufficiency of the evidence be subject to de novo review in all cases. We routinely review constitutional claims under otherwise-applicable, deferential standards of review, and it is a truism that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.").

11 . Since Miller, divisions of this court have applied plain error review to alleged constitutional violations. See, eg., People v. Lientz, 2012 COA 118, 110, 317 P.3d 1215 (challenge to court's statutory and constitutional authority to impose probation conditions); People v. SandovalCandelaria, No. O7CAOT59, 2011 WL 2186433, at *11 (Colo.App. May 26, 2011) ("constitutional right to speedy sentencing"), rev'd on other grounds, 2014 CO 21, 321 P.3d 487; People v. Banark, 155 P.3d 609, 611 (Colo.App.2007) (constitutional challenge to sentencing procedure).

12 . Compare United States v. Goode, 483 F.3d 676, 681 n. 1 (10th €ir.2007) ("[A] conviction in the absence of sufficient evidence of guilt is plainly an error, clearly prejudiced the defendant, and almost always creates manifest injustice."), United States v. Duran, 133 F.3d 1324, 1335 n. 9 (10th Cir.1998) ("[Rleview under the plain error standard ... and a review of sufficiency of the evidence usually amount to largely the same exercise."), United States v. Vizcarra-Martinez, 66 F.3d 1006, 1010 (9th Cir.1995) (explaining that it could not "envision a case in which the result would be different because of the application of one rather than the other of the standards of review""), and United States v. Bowie, 892 F.2d 1494, 1496-97 (10th Cir.1990) ("When considering the sufficiency of the evidence to support the verdict, we have stated the plain error standard in different words, but the standard actually applied is essentially the same as if there had been a timely motion for acquittal." (citations omitted)), with United States v. Herrera, 313 F.3d 882, 885 (5th Cir.2002) (plain error review "is limited to determining whether ... the record is devoid of evidence pointing to guilt"), United States v. Hernandez, 227 F.3d 686, 694 (6th Cir.2000) (same), and United States v. Owens, 301 F.3d 521, 528 (7th Cir.2002) (explaining that plain error "is present only if [the] convictions amount to a manifest miscarriage of justice," which in the sufficiency context means "the record is devoid of evidence pointing to guilt, or if the evidence on a key element of the offense was so tenuous that a conviction would be shocking").

13 . In federal courts, plain error requires: "(1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affects substantial rights." United States v. Scull, 321 F.3d 1270, 1277 (10th Cir.2003) (quoting United States v. Hughes, 191 F.3d 1317, 1322 (10th Cir.1999)). And if these criteria are satisfied, the "Iclourt may exercise discretion to correct the error if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. This final prong of federal plain error has not been adopted by our supreme court. But see People v. Greer, 262 P.3d 920, 937 (Colo.App.2011) (J. Jones, J., specially concurring). Even so, here our analysis relies solely on the second prong of plain error-obviousness-which both Colorado and federal courts apply.

14 . See, eg., United States v. Hillman, 642 F.3d 929, 937 (10th Cir.2011) ("Even assuming an error ... [the defendant] cannot satisfy his obligation to show that [it] was ... 'clear or obvious aa» under current law.'" (quoting United States v. Goode, 483 F.3d 676, 681 (10th Cir.2007))); United States v. Rios-Hernandez, 645 F.3d 456, 463 (1st Cir.2011) ("Assuming, without deciding, that an error occurred, we find that [the defendant] does not satisfy the second criterion of the plain error standard."); United States v. Blackwell, 459 F.3d 739, 772 (6th Cir.2006) ("Assuming, without deciding, that the imposition of the term in this case constituted error, we do not find that the error was 'plain' or obvious."); United States v. Ellis, 326 F.3d 593, 596 (4th Cir.2003) (""We need not decide whether an error occurred here because we conclude that any such error was not ... 'clear' or 'obvious.' "); United States v. Graham, 317 F.3d 262, 270 (D.C.Cir.2003) ("Given the lack of clarity concerning the standard, even assuming error by the district court in applying the preponderance of evidence standard, any error was neither a 'clear' nor 'obvious' error.").

15 . The few cases to have addressed this issue hold, as the Attorney General argues, that a riot in a detention facility may be a public disturbance if it "encompasses events relating to or affecting the people of an organized community." United States v. Bridgeman, 523 F.2d 1099, 1114 (D.C.Cir.1975) (internal quotation marks omitted); see also Commonwealth v. Zwierzelewski, 177 Pa.Super. 141, 110 A.2d 757, 760 (1955) ("disturbance of the peace" included disturbance that "took place within the walls and on the grounds of a penitentiary").

16 . Even though the arrest warrant was not served on defendant at this time, the trial court found that "[this is a case where they knew where the defendant was ... [hle was in Colorado Springs in their jail. They could have served the warrant at that time, and so the Court thinks it's fair to give him credit for that time served."