People v. Butcher

• Decision Date: 19 April 2018
• Docket Number: Court of Appeals No. 15CA1816
• Citation: 463 P.3d 890
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David Michael BUTCHER, Defendant-Appellant.
• Court: Colorado Court of Appeals

463 P.3d 890

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.David Michael BUTCHER, Defendant-Appellant.

Court of Appeals No. 15CA1816

Colorado Court of Appeals, Division III.

Announced April 19, 2018

Modified on Denial of Rehearing June 14, 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

Opinion by JUDGE WEBB

¶ 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 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 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 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, 413 P.3d 1274 (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, 352 P.3d 950 (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 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.

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.

¶ 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).

¶ 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, 350 P.3d 968, the division 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....