Hagos v. People , 288 P.3d 116 ( 2012 )

Justice RICE

delivered the Opinion of the Court.

T1 In this postconviction proceeding, we address whether a determination on direct appeal that instructional error did not constitute plain error necessarily requires a determination in postconviction proceedings that trial counsel's failure to object to the erroneous instruction did not prejudice the defense. We conclude that a determination that instructional error did not constitute plain error does not control a determination of prejudice under Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because the two standards are not the same. The plain error standard requires that an error impair the reliability of the judgment of conviction to a greater degree than the Strickland prejudice standard. Ha-gos's ineffective assistance of counsel claim, nonetheless, fails under the separate, fact, specific Strickland analysis. Thus, we affirm the court of appeals' judgment, albeit on different grounds.

I. Facts and Procedural History

12 Abraham Hagos and another man distributed drugs from an apartment. A buyer broke into the apartment and took a safe containing cash and drugs. In retaliation, Hagos and others kidnapped and assaulted the buyer's brother.

13 A grand jury indicted Hagos for first degree kidnapping, first degree burglary, aggravated robbery, assault in the second degree, and conspiracy to commit each of these crimes. At trial, the trial court instructed the jury, "[the elements of the crime of First Degree Kidnapping are: (1) That the Defendant, ... (38) forcibly, or otherwise, seized and carried any person from one place to another." (Emphasis added). Hagos did not object to this instruction. The jury returned guilty verdicts for first degree kidnapping; first degree burglary; felony menacing; and conspiracy to commit second degree kidnapping, first degree burglary, and felony menacing.

14 Hagos appealed and the court of appeals affirmed. Among other claims, Hagos asserted that the trial court committed plain error by including the words "or otherwise" in its instruction on first degree kidnapping. The court of appeals concluded that the instruction was erroneous, but the error did not constitute plain error because it did not so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the conviction. The court of appeals reached this conclusion because it determined that the record contained overwhelming and undisputed evidence that the kidnapping occurred by force.

{5 Hagos then filed a Crim. P. 85(c) post-conviction motion in the trial court. He asserted, among other contentions, that his trial counsel had provided ineffective assistance by failing to object to the erroneous instruction. The trial court denied the motion. It determined that Hagos could not establish the prejudice component of the ineffective assistance claim because the court of appeals had held on direct appeal that the erroneous instruction did not warrant reversal under plain error analysis.

T6 Hagos appealed the order denying his postconviction motion and the court of appeals affirmed. The court of appeals followed People v. Villarreal, 231 P.3d 29, 34 (Colo.App.2009), which determined that the prejudice component of a plain error analysis is essentially identical to the prejudice component of an ineffective assistance of counsel analysis under Strickland. The court of appeals therefore held that Hagos's claim failed as a matter of law because it was defeated by the determination on direct appeal under plain error analysis that no prejudice occurred.

T 7 We granted certiorari to decide whether a determination on direct appeal that instructional error did not constitute plain error necessarily requires a determination in postconviction proceedings that trial counsel's failure to object to the erroneous instruction did not prejudice the defense.¹ °

II. Error Standards in Criminal Appeals

{8 Before addressing the difference between plain error and ineffective assistance of counsel, we describe, as useful context, the various error doctrines that dictate reversal of a conviction in criminal appeals.

{9 Appellate courts in Colorado employ one of five different standards to determine whether an error in criminal proceedings necessitates reversal of the judgment of conviction.² These five standards differ by the degree to which they require that the error impair the reliability of the judgment of conviction. We now describe these five types of review:

® Structural error;

® Constitutional harmless error;

e Harmless error;

e Claims where the effect on the conviction is constitutionally material to the claim itself; and

® Plain error.

110 First, certain errors are structural errors, which require automatic reversal without individualized analysis of how the error impairs the reliability of the judgment of conviction. Neder v. United States, 527 U.S. 1, 8, 119 S.Ct., 1827, 144 L.Ed.2d 35 (1999); Blecha v. People, 962 P.2d 931, 942 (Colo.1998). Examples of these errors include: complete deprivation of counsel, trial before a biased judge, unlawful exclusion of members of the defendant's race from a grand jury, denial of the right to self-representation, and denial of the right to a public trial, Neder, 527 U.S. at 8, 119 S.Ct. 1827 (collecting cases).

111 Second, we review trial errors of constitutional dimension that were preserved by objection for constitutional harmless error. Krutsinger v. People, 219 P.3d 1054, 1058 (Colo.2009). These errors require reversal unless the reviewing court is "able to declare a belief that [the error] was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In other words, we reverse if "there is a reasonable possibility that the [error] might have contributed to the conviction." Id. (emphasis added); Krutsinger, 219 P.3d at 1058. For this kind of error, the State bears the burden of proving the error was harmless beyond a reasonable doubt. See Chapman, 386 U.S. at 24, 87 S.Ct. 824 ("Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment."); id. at 26, 87 S.Ct. 824 ("Under these circumstances, it is completely impossible for us to say that the State has demonstrated, beyond a reasonable doubt, that the prosecutor's comments and the trial judge's instruction did not contribute to petitioners' convictions."); see also Kimmelmamn v. Morrison, 477 U.S. 365, 382 n. 7, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (noting that the constitutional harmless error standard of Chapman requires the State to prove that the defendant was not prejudiced by the error).

112 Third, we review nonconstitutional trial errors that were preserved by objection for harmless error. Crim. P. 52(a); Tevlin v. People, TIL P.2d 338, 341-42 (Colo.1986). Under this standard, reversal is required only if the error affects the substantial rights of the parties. Crim. P. 52(a); Tevlin, 715 P.2d at 342. That is, we reverse if the error "substantially influenced the verdict or affected the fairness of the trial proceedings." Tevlin, 715 P.2d at 342. Reversal is more difficult to obtain under this standard than under the constitutional harmless error standard because this standard requires that the error impair the reliability of the judgment of conviction to a greater degree than the constitutional harmless error standard requires. See Krutsinger, 219 P.3d at 1058 (stating that nonconstitutional harmless error more readily produces a finding of harmlessness than constitutional harmless error).

$13 Fourth, for certain types of claims, including ineffective assistance of counsel, the effect of the error upon the proceedings is constitutionally material to the claim itself. Delaware v. Van Arsdall, 475 U.S. 678, 679-80, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (citing Strickland, 466 U.S. at 671-701, 104 S.Ct. 2052). That is, these claims "by their nature require a showing of prejudice with respect to the trial as a whole." Id. A defendant can therefore sue-ceed on a claim for ineffective assistance of counsel only by showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ardolino v. People, 69 P.3d 73, 76 (Colo.2003) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Satisfaction of this standard is more difficult than reversal under the harmless error standard because this standard requires that the error impair the reliability of the judgment of conviction to a greater degree than the harmless error standard requires.³ Krutsinger, 219 P.3d at 1060 (citing Kyles v. Whitley, 514 U.S. 419, 436, 115 S.Ct. 1555, 1831 L.Ed.2d 490 (1995)).

114 Finally, we review all other errors, constitutional and nonconstitutional, that were not preserved by objection for plain error. People v. Miller, 113 P.3d 743, 748-50 (Colo.2005). Plain error is obvious and substantial. Id. at 750. We reverse under plain error review only if the error "so undermined the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of the judgment of conviction." Id. (quoting People v. Sepulveda, 65 P.3d 1002, 1006 (Colo.2003)). Because this standard was formulated to permit an appellate court to correct "particularly egregious errors," Wilson w. People, 743 P.2d 415, 420 (Colo.1987), the error must impair the reliability of the judgment of conviction to a greater degree than under harmless error to warrant reversal.

T15 Having placed the plain error and ineffective assistance of counsel standards in context, we address whether plain error requires a showing that the error impair the reliability of the conviction to a greater degree than the Strickland prejudice standard.

III. Plain Error and Strickland Prejudice

16 If plain error requires that an error impair the reliability of the judgment of con-viection to a greater degree than Strickland prejudice, then a determination that the error did not constitute plain error does not control the determination of whether a defendant can establish Strickland prejudice. We conclude that plain error requires a greater degree of harm in order for reversal to be warranted.

117 A criminal defendant is constitutionally entitled to effective assistance from his counsel. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To succeed on a claim of ineffective assistance of counsel, a defendant

must show (1) that his counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. Ardolino, 69 P.3d at 76. To satisfy the prejudice component of the Strickland test, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). A reasonable probability means a "probability sufficient to undermine confidence in the outcome." Id. (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). The word "probability" does not require a defendant to show that the deficient performance more likely than not altered the outcome of the case. Strickland, 466 U.S. at 693, 104 S.Ct. 2052.

118 Plain error addresses error that is both "obvious and substantial." Miller, 118 P.3d at 750. We have recognized plain error as those errors that "so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction." Wilson, 743 P.2d at 420 (citing Umited States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)); see also Miller, 113 P.3d at 750. The plain error standard is "calculated to temper the contemporaneous-objection requirement in the interests of permitting an appellate court to correct particularly egregious errors." Wilson, 748 P.2d at 420. These errors must therefore "seriously affect the fairness, integrity or public reputation of judicial proceedings." Young, 470 U.S. at 15, 105 S.Ct. 1038 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1986)); see also Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo.2005) ("A reviewing appellate court must inquire into whether the errors seriously affected the fairness or integrity of the trial.").

{19 Plain error casts serious doubt on the judgment of conviction. Deficient performance of counsel, on the other hand, undermines confidence in the judgment of conviction. The words "undermine confidence" reveal that the error in a claim of ineffective assistance of counsel must impair the reliability of the judgment of conviction to a lesser degree than a plain error in order to warrant reversal of the conviction. These two standards are therefore not the same.

€20 The two claims serve different purposes and each requires an independent, fact-specific analysis. The direct appeal addresses whether the prejudice resulted from the trial court's acts or omissions, while the ineffective assistance claim examines whether prejudice resulted from counsel's acts or omissions. Moreover, a direct appeal and an ineffective assistance of counsel claim ask the court to assess substantially different errors in the context of different due process rights. The direct appeal analysis examines whether an error deprived the defendant of his constitutional right to trial, while an ineffective assistance analysis looks at whether an error deprived the defendant of his constitutional right to effective assistance of counsel. Because the two claims serve different purposes and each requires an independent, fact-specific analysis, the respective analyses should remain separate.

€ 21 A prior determination, therefore, 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.

{ 22 The People assert that certain formulations in our cases of the plain error standard reveal that the degree of prejudice required under plain error review is equal to or below that of Strickland prejudice. We ree-ognize that we have recently used the words "reasonable possibility" in connection with plain error review of instructional error. Kaufman v. People, 202 P.3d 542, 549 (Colo.2009); People v. Weinreich, 119 P.3d 1073, 1078 (Colo.2005). This phrase entered our discussion of plain error forty years ago from the United States Supreme Court's formulation of constitutional harmless error review. See People v. Barker, 180 Colo. 28, 32-33, 501 P.2d 1041, 1043 (1972) (citing Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972)); see also Schneble, 405 U.S. at 432, 92 S.Ct. 1056 (citing Chopman, 386 U.S. at 24, 87 S.Ct. 824). At that time, we had employed various formulations of the plain error rule, including one using the words "reasonable possibility." Wilson, 748 P.2d at 419 (collecting cases). In addition, our cases were contradictory on whether we reviewed unpreserved constitutional error for plain error or for constitutional harmless error. See Miller, 118 P.3d at 748. But since then, we have made clear that we review unpreserved constitutional errors for plain error, id. at 749, and that plain error is error that so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. Wilson, 743 P.2d at 420. The phrase "reasonable possibility" in our plain error cases restates this plain error standard, that the error so undermine the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. See Lehmert v. People, 244 P.3d 1180, 1185 (Colo.2010); Kaufman, 202 P.3d at 549; Weinreich, 119 P.3d at 1078. Our use of the phrase does not mean that plain error review requires a showing that the reliability of the judgment of conviction is impaired to the same degree as harmless error. Compare Miller, 113 P.3d at 749 (reversal required if the error casts serious doubt upon the reliability of the judgment of conviction), with Chapman, 386 U.S. at 24, 87 S.Ct. 824 (reversal required unless the reviewing court can declare a belief that the error was harmless beyond a reasonable doubt). We reaffirm the Wilson formulation of the plain error standard-that is, those errors that "so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction." 743 P.2d at 420 (citing Young, 470 U.S. at 16, 105 S.Ct. 1088); Miller, 113 P.3d at 750.

128 Our conclusion is consistent with the purposes underlying each standard. Plain error review reflects a "careful balance ing 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." United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). 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.

124 Ineffective assistance of counsel claims, however, do not require the same balancing of interests. Moreover, effective assistance of counsel "plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the 'ample opportunity to meet the case of the prosecution' to which they are entitled." Strickland, 466 U.S. at 685, 104 S.Ct. 2052 (quoting Adams v. United States ex rel. McCamm, 317 U.S. 269, 275, 63 S.Ct. 236, 87 L.Ed. 268 (1942)). Ineffective assistance of counsel thus involves greater protection for defendants than plain error review. These underlying policies therefore support the conclusion that ineffective assistance of counsel claims allow for reversal upon a showing that an error impaired the reliability of the judgment of conviction to a lesser degree than plain error review would require.

IV. Application

T25 Turning to the facts of this case as established by the record, Hagos's claim for ineffective assistance of counsel is deficient. First, Hagos alleged ineffective assistance of counsel on constitutional grounds because counsel did not attack the search of Hagos's apartment. The court of appeals properly rejected this argument because the exact same search of Hagos's apartment was found to be constitutionally permissible in a companion case. Thus, the doctrine of issue preclusion applied and counsel's failure to attack the exact same search on the identified grounds is not ineffective as a matter of law.

126 Second, Hagos failed to establish any prejudice resulting from the erroneous jury instruction. It was never disputed that the victim was in fact "forcibly" seized and carried: the victim was beaten, handcuffed, and taken to a car at gunpoint. Ha-gos argued at trial that he lacked the mens rea required for a guilty verdict because he was merely present to ensure that the victim was not seriously injured. The jury rejected Hagos's theory. Therefore, the language "or otherwise" included in the kidnapping instruction had no effect on the judgment of conviction, and Hagos's Crim. P. 385(c) claim inevitably fails.

T 27 Thus, the jury instruction, though erroneous, had no effect on the judgment of conviction. Consequently, Hagos's claim for ineffective assistance of counsel fails through a separate, fact-specific analysis pursuant to Strickland.

V. Conclusion

$28 We conclude that a determination that instructional error did not constitute plain error does not control a determination of prejudice under Strickland, because the plain error and Strickland standards are not the same. The plain error standard requires that an error impair the reliability of the judgment of conviction to a greater degree than the Strickland prejudice standard. Hagos's ineffective assistance of counsel claim, nonetheless, fails under the separate, fact-specific Strickland analysis. Thus, we affirm the court of appeals' judgment on different grounds.

Justice EID concurs in the judgment. Justice COATS does not participate.

1 . Specifically, we granted certiorari on the following issue:

Whether the court of appeals erred when it held that a finding of no plain error in Petitioner's earlier appeal regarding defective ... jury instructions, necessarily required a finding of no ineffective assistance of counsel regarding a failure to object to ... the same jury instructions in Petitioner's later Crim. P. 35(c) motion, thus affirming the trial court's order denying the Crim. P. 35(c) motion.

2 . We note that two additional standards, invited error and cumulative error, also govern whether errors will result in reversal of the conviction. See People v. Zapata, 779 P.2d 1307, 1309 (Colo.1989) (invited error); Oaks v. People, 150 Colo. 64, 66-67, 371 P.2d 443, 446 (1962) (cumulative error). We do not describe them as useful context here because they do not govern reversal based on how a single error impairs the reliability of the judgment of conviction.

3 . Such a claim cannot be harmless because satisfaction of the prejudice component of the claim necessarily entails the conclusion that the error substantially influenced the verdict. Kyles v. Whitley, 514 U.S. 419, 435-36, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).