May 23, 2017

Colorado Supreme Court: Double Jeopardy Claims May Be Raised for the First Time on Appeal

The Colorado Supreme Court issued its opinion in Reyna-Abarca v. People on Monday, February 27, 2017.

Plain Error Review—Double Jeopardy—Lesser Included Offenses.

In these four cases, which raise the ultimate question of whether driving under the influence (DUI) is a lesser included offense of either vehicular assault-DUI or vehicular homicide-DUI, the Colorado Supreme Court addressed (1) whether a double jeopardy claim can be raised for the first time on direct appeal, and (2) what test courts should apply in evaluating whether one offense is a lesser included offense of another.

The court concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error. In so holding, the court rejected the People’s contention that defendants waive their double jeopardy claims unless they raise them at trial through a Crim. P. 12(b)(2) challenge to defective charging documents.

The court further concluded that the applicable test for determining whether one offense is a lesser included offense of another is the strict elements test articulated in Schmuck v. United States, 489 U.S. 705, 716 (1989). Under this test, an offense is a lesser included offense of another offense if the elements of the lesser offense are a subset of the elements of the greater offense, such that the lesser offense contains only elements that are also included in the elements of the greater offense. Applying this test to the cases before it, the court concluded that DUI is a lesser included offense of both vehicular assault-DUI and vehicular homicide-DUI, and thus, defendants’ DUI convictions must merge into the greater offenses. The court further concluded that in not merging such offenses, the trial courts plainly erred and that reversal of the multiplicitous convictions is therefore required.

Accordingly, the court affirmed the divisions’ rulings in People v. Reyna-Abarca, No. 10CA637 (Colo.App. Aug. 1, 2013), and People v. Hill, No. 12CA168 (Colo.App. Aug. 8, 2013), that appellate courts review unpreserved double jeopardy claims for plain error, but reversed the portions of the judgments in those cases concluding that DUI is not a lesser included offense of vehicular assault-DUI, and remanded for further proceedings consistent with the opinion. Similarly, the Court reversed the portion of the judgment in People v. Medrano-Bustamante, 2013 COA 139, ___ P.3d ___, concluding that DUI is not a lesser included offense of vehicular assault-DUI and vehicular homicide-DUI, and remanded for further proceedings. The Court affirmed the judgments in those cases in all other respects, and affirmed in full the judgment in People v. Smoots, 2013 COA 152, ___ P.3d ___.

Summary provided courtesy of The Colorado Lawyer.

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