Opinions of the Colorado Supreme Court are available to the 1 public and can be accessed through the Judicial Branch’s homepage at 2 http://www.courts.state.co.us

. Opinions are also posted on the 3 Colorado Bar Association’s homepage at http://www.cobar.org

. 4 5 ADVANCE SHEET HEADNOTE 6 February 27, 2017 7 8 2017 CO 18 9 10 No. 14SC25, People v. Zadra , & No. 15SC 262, People v. Adams

— Plain Error Review

— 11 Double Jeopardy. 12 13 These two cases present the issues of whether double jeopardy claims can be 14 raised for the first time on direct appeal and, if so, what standard of review applies. 15 The supreme court addresses the same issues in four cases decided today as 16 Reyna

- Abarca v. People , 2017 CO 15, ___ P.3d ___. There, the supreme court concluded 17 that unpreserved double jeopardy claims can be raised for the first time on appeal and 18 that appellate courts should ordinarily review such claims for plain error. 19 Applying that ruling here, the court concludes that the divisions in People v. 20
Zadra , 2013 COA 140, ___ P.3d ___, and People v. Adams , No. 12CA339 (Colo. App. 21

Mar. 12, 2015), correctly conducted plain error review of the defendants’ unpreserved 22 double jeopardy claims and merge d certain of the defendants’ convictions. 23 Accordingly, the supreme court affirms the judgments in both cases. 24

25

26

27

281
2
3 The Supreme Court of the State of Colorado 4 2 East 14 th Avenue • Denver, Colorado 80203 5

2017 CO 18 6 Supreme Court Case No. 14SC25 7 Certiorari to the Colorado Court of Appeals 8 Court of Appeals Case No. 10CA1207 9
Petitioner: 10 The People of the State of Colorado, 11

v. 12 Respondent: 13 Michelle L. Zadra. 14 Judgment Affirmed 15 en banc 16 February 27, 2017 17

* * * * * 18 Supreme Court Case No. 15SC262 19 Certiorari to the Colorado Court of Appeals 20 Court of Appeals Case No. 12CA339 21

Petitioner: 22 The People of the State of Colorado, 23

v. 24 Respondent: 25 Cornell L. Adams. 26 Judgment Affirmed 27 en banc 28 February 27, 2017 29

302

Attorneys for Petitioner: 1 Cynthia H. Coffman, Attorney General 2 John T. Lee, Assistant Attorney General 3 Denver, Colorado 4 5 Attorneys for Respondent Michelle L. Zadra: 6 Gill & Ledbetter, LLP 7 Anne Whalen Gill 8 Castle Rock, Colorado 9 10 Attorneys for Respondent Cornell L. Adams: 11 Douglas K. Wilson, Public Defender 12 Sarah A. Kellogg, Deputy Public Defender 13 Denver, Colorado 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 JUSTICE GABRIEL delivered the Opinion of the Court. 443

¶1 These two cases present the issue s of whether double jeopardy claims can be raised for the first time on direct appeal and, if so, what standard of review applies

. 1

We addressed these same issue s in four cases decided today as Reyna

- Abarca v. People ,
2017 CO 15 , ___ P.3d

___ . In Reyna

- Abarca , we concluded that unpreserved double jeopardy claims can be r aised for the first time on appeal and that appellate courts
should ordina r ily r eview such claims for plain error. Id. at ¶ 2. Applying that ruling
here, we conclude tha t the divisions in People v. Zadra , 2013 COA 140,

___ P.3d ___, and People v. Adams , No. 12CA339 (Colo. App. Mar. 12, 2015) , correctly conducted plain error re view of the defendants’ unpreserved double jeopardy claims and merged

certain of the defendants’ convictions . Accordingly, we affirm the judgments in both

cases.


### I. Facts and Procedural History
¶2 We begin by discussing the pertinent facts and procedural histories of the two

cases now before us.



### A. Zadra

¶3 The Peop le charged Michelle L. Zadra with, among other things , nine perjury

counts related to testimony that she provided in connection with her role as a c aptain in the Gunnison County Sheriff’s Office with supervisory authority over the county jail.

1 Specifically, we granted certiorari in Zadra to review the following issue: Whether unpreserved multiplicity claims are reviewable for plain error. We granted certiorari in Adams to review the following issue: Whether a double jeopardy claim can be raised for the first time on direct appeal.4

Zadra did not object to the multiple perjury charges pursuant to Crim. P. 12(b)(2), which provides , as pertinent here, that objections based on defects in the charging document may be raised only by motion and that the failure to present such an objection const itutes a waiver thereof.

¶4 After trial, a jury found Zadra guilty of , among other charges , seven perjury

counts. At no time prior to or during the sentencing proceedings did Zadra argue that her multiple perjury convictions violate d her double jeopardy righ ts under either the

United States or Colorado Constitution s

. ¶5 Zadra appealed her convictions and argued, as pertinent here , tha t charging and sentencing her on seven perjury co unts that allegedly arose from her testimony at a single h earing viola ted s ection 18

- 1

- 408 (1), C.R.S. (2016) . That section allows a

defendant to be prosecuted for multiple offenses arising from his or her conduct but

does not allow the defendant to be convicted of more than one offense if, among other things, (1) one offense is includ ed in the other, (2) one offense consists only of an attempt to commit the other, or (3) the offense at issue is defined as a continuing course of conduct and the defendant’s course of conduct was uninterrupted (unless the law provides that specific period s or instances of such conduct constitute separate offenses).

Id. Zadra contended that the testimony underlying the seven perjury counts at issue all occurred at a single hearing and therefore constituted a single episode. She thus argued

that her multi plicitous conviction s violated section 18

- 1

- 408

. ¶6 The People responded that Zadra had waived this claim by not objecting at trial

to defects in the information under Crim. P. 12(b) (2)

. A lternatively, the People5

contended that section 18

- 1

- 408 did not preclude the multiple perjury convictions at

issue because the applicable perjury statute did not define perjury as a continuing offense and each conviction depended on different “funds of evidence.”

¶7 In a unanimous, published decision , the court of appeals division , relying on case law interpreting the federal analogue to Crim. P. 12(b)(2) , see Fed. R. Crim. P. 12(b)(2)(B), initially agreed with the People’s assertion that a multiplicity challenge to

counts alleged in a charging document is an objec tion of the type that Crim. P. 12(b)(2) requires, at least when the defect is apparent from the face of the charges. Zadra , ¶¶ 65

– 66. The division further observed, however, that federal appellate courts had disagree d as to whether a “waiver” under the f ederal rule precluded appellate review altogether, absent a showing of good cause for overlooking the waiver. Id. at ¶ 67. In particular, t he division noted that some courts had held that plain error review was
available if it appeared that the defendant’s failure to file a Fed. R. Crim. P. 12(b)(2)(B)

motion was not intentional , but rather was the result of mere oversight

. Id. Per suaded by this reasoning, the Zadra division concluded that because nothing in the record

indicated that Zadra ’ s failure to file a timely motion asserting multiplicity was anything other than an oversight , plain error review was appropriate

. Id. at ¶ 71. The division then proceeded to the merits, ultimately concluding that three of Zadra’s perjury

convictions had been established by identical proof , thereby requiring merger of those

counts. Id. at ¶ ¶ 81

– 82.

¶8 The People petitioned this court for a writ of certiorari on whether the division had properly reviewe d Zadra’s claim for plain error, and we granted that petition.6 

### B. Adams

¶9 The Peopl e charged Cornell L. Adams with , among other things, attempt to
commit sexual assault and sexual assault of his daughter ’s mother

. At trial, Adams did not challenge thes e two charges pursuant to Crim. P. 12(b)(2).

¶10 After Adams’ s fir st trial resulted in a mistrial, the People tried him again , and a jury found him guilty of, a s pertinent here , the attempted se xual assault and sexual

assault counts. At no time prior to or during the subsequent sentencing proceedings

did Adam s challenge his convictions for both attempted sexual assault and sexual

assau lt on double jeopardy grounds.

¶11 Adams appealed and argued for the first time that his convictions on these two

counts violated double jeopardy principles and , thus, the trial cour t had erred in not merging those co unts

. Specifically, Adams contended that because the se two

convictions a rose from the same sexual assault incident, they constituted multiple punishments for a single act of sexual assault

. ¶12 T he People disagreed , arguing that Adams had vaginally raped the victim and then, separately, attempted to penetrate h er anally . Accordingly , the People contended

that sufficient evidence supported both co nvictions.

¶13 In a unanimous, unpublished decision , t he division reviewed Adams’ s

u npreserved double jeopardy claim for plain error. Adams , slip op. at 14

– 15. T he

division began by noting that double jeopardy principles protect the accused from the imposition of multiple punishments for the same offense. Id. at 15. T he division then

concluded that the evidence presented in support of the attempted sexual assault ( i.e.,7

the attempted anal penetration) did not establish that it was separated by time, space, or

a volitional departure f rom the sexual assault (i.e., the vaginal penetration ) so as to support multiple convictions

. Id. at 17

– 19

. ¶14 Having thus discerned error, the question remained whether the error ros e to the level of plain error. The division concluded that it did, thereby requiring that the attempted sexual assault convicti on merge into the sexual assault conviction. Id. at

18

– 19.

¶15 The People petitioned this court for a writ of certiorari on the issue of whether

the division had properly reviewed Adams’ s double jeopardy claim for the first time on

direct appeal, and we granted that petition.



### II. Analysis
¶16 The People contend that the Zadra and Adams divisions erred in reviewing the defendants’ unpreserved double jeopardy claims for plain error. We addressed the

same issue in the four cases decided today as Reyna

- Abarca

. In those cases, the

defendants sought review of unpreserved claims that their convictions for both greater

and lesser included offense s violated double jeopardy principles

. We 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. Reyna

- Abarca , ¶ 2

. ¶17 In r eaching th is conclusion , we expressly rejected the People’s contention, which the People also assert in the present cases, that a double jeopardy claim must be ra ised at trial pursuant to Crim. P. 12(b)(2), or else it is waived. Id. at ¶ ¶ 38

– 45

. As we8

explained at length in Reyna Abarca , Crim. P. 12(b) (2) is inapplicable because (1) prosecutors are permitted to charge in an information multiple claims arising from

the same set of facts ; (2) a double jeopardy claim does not arise until the defendant is

convicte d of multiplicitous counts ; (3) Crim. P. 12(b)(2) does not require a defendant to file a motion regarding any error th at might later flow from the charging document; and (4) no authority supports the People’s position that a defendant must “bookmark” a future double jeopardy claim at the pleadings stage. See id

. ¶18 The same analysis applies to the cases now before us. Accordingly, we conclude that the divisions below properly reviewed the defendants’ unpreserved double jeopardy claims for plain error, although our analysis , which concludes that Crim. P. 12(b)(2) is inapplicable, differs from that employed by the Zadra d ivision , which

concluded the Crim. P. 12(b)(2) applies but that plain error review was proper when the

defendant’s failure to file a Crim. P. 12(b)(2) motion was not intentional but merely the result of oversight

. 

### III. Conclusion
¶19 For these reasons, we aff irm the j udgment s in Adams an d Zadra and remand both cases for further proceedings consistent with this opinion.