Hagos v. People, No. 10SC424.

Docket NºNo. 10SC424.
Citation2012 CO 63, 288 P.3d 116
Case DateNovember 05, 2012
CourtSupreme Court of Colorado

288 P.3d 116
2012 CO 63

Abraham HAGOS, Petitioner
v.
The PEOPLE of the State of Colorado, Respondent.

No. 10SC424.

Supreme Court of Colorado,
En Banc.

Nov. 5, 2012.


[288 P.3d 117]


Reppucci Law Firm, P.C., Jonathan D. Reppucci, Denver, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, Elizabeth Rohrbough, Senior Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.


Justice RICE delivered the Opinion of the Court.

¶ 1 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. Hagos'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

¶ 2 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,

[288 P.3d 118]

Hagos and others kidnapped and assaulted the buyer's brother.

¶ 3 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, “[t]he elements of the crime of First Degree Kidnapping are: (1) That the Defendant, ... (3) 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.

¶ 4 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. 35(c) postconviction 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.

¶ 6 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.

¶ 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;

[288 P.3d 119]

• Harmless error;

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

• Plain error.

¶ 10 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).

¶ 11 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 Kimmelman 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).

¶ 12 Third, we review nonconstitutional trial errors that were preserved by objection for harmless error. Crim. P. 52(a); Tevlin v. People, 715 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. 673, 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 succeed 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

[288 P.3d 120]

the judgment of conviction to a greater degree than the harmless error standard requires. 3Krutsinger, 219 P.3d at 1060 (citing Kyles v. Whitley, 514 U.S. 419, 436, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).

¶ 14 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...

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315 practice notes
  • People v. Mountjoy, Court of Appeals No. 13CA1215
    • United States
    • Colorado Court of Appeals of Colorado
    • June 2, 2016
    ...would gut the preference for preservation and effectively require that all such challenges be entertained on appeal. Cf. Hagos v. People , 2012 CO 63, ¶ 23, 288 P.3d 116 (noting the need "to maintain adequate motivation among trial participants to seek a fair and accurate trial the first ti......
  • People v. Cardman, Court of Appeals No. 14CA0202
    • United States
    • Colorado Court of Appeals of Colorado
    • September 22, 2016
    ...have made at trial. As our opinions demonstrate, findings of plain error are few and far between, as they should be. Hagos v. People , 2012 CO 63, ¶ 23, 288 P.3d 116. But plain error review is essential to review convictions that are potentially unreliable because of a serious error in the ......
  • People v. McGlaughlin, 15CA2008
    • United States
    • Colorado Court of Appeals of Colorado
    • August 9, 2018
    ...to any showing of prejudice. United States v. Cronic , 466 U.S. 648, 659 n.25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ; Hagos v. People , 2012 CO 63, ¶ 10, 288 P.3d 116.2. Other Violations of C.R.C.P. 205.7¶ 18 Having determined that it is a violation of C.R.C.P. 205.7 for the supervising la......
  • People v. Houser, Court of Appeals No. 17CA0972
    • United States
    • Colorado Court of Appeals of Colorado
    • August 27, 2020
    ...104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. ; see Hagos v. People , 2012 CO 63, ¶ 30, 288 P.3d 116, 123 (holding that the standard of proof to demonstrate prejudice is that of a reasonable probability). ¶ 31 "It is the d......
  • Request a trial to view additional results
324 cases
  • People v. Mountjoy, Court of Appeals No. 13CA1215
    • United States
    • Colorado Court of Appeals of Colorado
    • June 2, 2016
    ...would gut the preference for preservation and effectively require that all such challenges be entertained on appeal. Cf. Hagos v. People , 2012 CO 63, ¶ 23, 288 P.3d 116 (noting the need "to maintain adequate motivation among trial participants to seek a fair and accurate trial the first ti......
  • People v. Cardman, Court of Appeals No. 14CA0202
    • United States
    • Colorado Court of Appeals of Colorado
    • September 22, 2016
    ...have made at trial. As our opinions demonstrate, findings of plain error are few and far between, as they should be. Hagos v. People , 2012 CO 63, ¶ 23, 288 P.3d 116. But plain error review is essential to review convictions that are potentially unreliable because of a serious error in the ......
  • People v. McGlaughlin, 15CA2008
    • United States
    • Colorado Court of Appeals of Colorado
    • August 9, 2018
    ...to any showing of prejudice. United States v. Cronic , 466 U.S. 648, 659 n.25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ; Hagos v. People , 2012 CO 63, ¶ 10, 288 P.3d 116.2. Other Violations of C.R.C.P. 205.7¶ 18 Having determined that it is a violation of C.R.C.P. 205.7 for the supervising la......
  • People v. Houser, Court of Appeals No. 17CA0972
    • United States
    • Colorado Court of Appeals of Colorado
    • August 27, 2020
    ...104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. ; see Hagos v. People , 2012 CO 63, ¶ 30, 288 P.3d 116, 123 (holding that the standard of proof to demonstrate prejudice is that of a reasonable probability). ¶ 31 "It is the d......
  • Request a trial to view additional results

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