SUMMARY 

April 19, 2018 

2018COA54

No. 15CA1816, People v. Butcher — Criminal Law — 

Restitution; Criminal Procedure — Plain Error 

Reviewing this restitution appeal for plain error, a division of 

the court of appeals finds one obvious error involving the 

calculation of postjudgment interest. However, exercising its 

discretion granted by “may” in Crim. P. 52(b), the division affirms 

because the error does not seriously affect the fairness, integrity, or 

public reputation of judicial proceedings. 

 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion. 
COLORADO COURT OF APPEALS 2018COA54

Court of Appeals No. 15CA1816 

Teller County District Court Nos. 10CR105 & 11CR118 

Honorable Edward S. Colt, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

David Michael Butcher, 

Defendant-Appellant. 

ORDER AFFIRMED 

Division III 

Opinion by JUDGE WEBB 

Tow and Casebolt*, JJ., concur 

Announced April 19, 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 

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. 

VI, § 5(3), and § 24-51-1105, C.R.S. 2017. 
1 

¶ 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 
2 

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 
3 

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 
4 

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 (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 (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 
5 

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. 
6 

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. 
7 

¶ 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). 
8 

¶ 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, the division 

 

1 In at least one older case, however, the supreme court has said it 

would “elect not” to address an unpreserved issue. Morse v. People, 

168 Colo. 494, 497, 452 P.2d 3, 5 (1969).
9 

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. App. 

2007) (“Crim. P. 52(b) provides us with discretion to notice ‘[p]lain 

errors or defects’ that ‘were not brought to the attention of the 

court’ . . . .”) (citation omitted), abrogated in part on other grounds 

by Brendlin v. California, 551 U.S. 249 (2007). 

¶ 23 Crim. P. 52(b) is very similar to its federal counterpart. 

Compare Fed. R. Crim. P. 52(b) (“A plain error that affects 

substantial rights may be considered even though it was not 

brought to the court’s attention.”), with Crim. P. 52(b) (“Plain errors 

or defects affecting substantial rights may be noticed although they 

were not brought to the attention of the court.”). Because of this 

similarity, federal law interpreting the federal rule of criminal 

procedure is informative.2 See Warne v. Hall, 2016 CO 50, ¶¶ 12-13 

(noting the desirability of interpreting similar Colorado and federal 

 

2 “Because the rules are similar, and because the supreme court 

adopted Crim. P. 52(b) in 1961, seventeen years after Congress 

adopted Fed. R. Crim. P. 52(b), it seems clear that the Colorado rule 

was patterned after the federal rule.” People v. Greer, 262 P.3d 920, 

937 (Colo. App. 2011) (J. Jones, J., specially concurring). 
10 

rules similarly); Crumb v. People, 230 P.3d 726, 731 n.5 (Colo. 

2010) (same). 

¶ 24 The discretionary view aligns with United States Supreme 

Court precedent. The Court first “articulated the standard that 

should guide the exercise of remedial discretion under Rule 52(b) 

almost 70 years ago in United States v. Atkinson, 297 U.S. 157 . . . 

(1936).” Nguyen v. United States, 539 U.S. 69, 85 (2003). 

“Congress then codified that standard in Rule 52(b).” Id.

¶ 25 In United States v. Olano, 507 U.S. 725, 735 (1993), the Court 

said, “Rule 52(b) is permissive, not mandatory. If the forfeited error 

is ‘plain’ and ‘affect[s] substantial rights,’ the court of appeals has 

authority to order correction, but is not required to do so.” Then it 

discussed the principles that “guide the exercise of remedial 

discretion under Rule 52(b)” and noted that without those limiting 

principles “discretion . . . would be illusory.” Id. at 736-37. 

¶ 26 Following Olano, we conclude that relief under Crim. P. 52(b) 

is a matter of discretion, not of right. 

¶ 27 Second, the Attorney General continues, exercising discretion 

should be informed by asking whether any errors “seriously affect 

the fairness, integrity or public reputation of judicial proceedings.” 
11 

United States v. Young, 470 U.S. 1, 15 (1985) (quoting Atkinson, 297 

U.S. at 160). Yet, the parties have not cited a case, nor have we 

found one, in which our supreme court has expressly adopted or 

rejected this test. 

¶ 28 A closer look shows that, on the one hand, in Hagos v. People, 

2012 CO 63, ¶ 18, the court quoted the Young formulation. See 

also Stackhouse v. People, 2015 CO 48, ¶ 34 (Plain error requires 

reversal if it “seriously affects the fairness, integrity or public 

reputation of judicial proceedings.” (quoting Puckett v. United 

States, 556 U.S. 129, 135 (2009))) (emphasis omitted). But, on the 

other hand, the court also said that plain error review leads to 

reversal if it “so undermined the fundamental fairness of the trial 

itself so as to cast serious doubt on the reliability of the judgment of 

conviction.” Hagos, ¶ 14 (citation omitted). 

¶ 29 Given these statements, one might ask whether our supreme 

court has simply collapsed the “seriously affects the fairness, 

integrity or public reputation of judicial proceedings” test into 

whether plain errors “cast serious doubt on the reliability of the 

judgment of conviction.” One might even inquire whether the court 
12 

implicitly reasoned that every unreliable conviction has such a 

serious effect. 

¶ 30 But a restitution error does not taint the underlying judgment 

of conviction. As the court explained in Sanoff v. People, 187 P.3d 

576, 578 (Colo. 2008): 

[T]he revised statutory structure . . . 

undermines the continuing validity of our 

earlier conclusion that the amount of 

restitution must be part of a judgment of 

conviction. In fact, by specifying that an order 

of conviction need only include a 

determination whether the defendant is 

obligated to pay restitution, without 

designation of the amount, the General 

Assembly has made clear its intent that the 

amount of the defendant’s liability no longer be 

a required component of a final judgment of 

conviction . . . . [B]y express legislative action, 

a subsequent determination of the amount of 

restitution owed by a defendant, as 

distinguished from an order simply finding her 

liable to pay restitution, has been severed from 

the meaning of the term “sentence,” as 

contemplated by Crim. P. 32, and therefore 

from her judgment of conviction. Neither 

subsequent proceedings to determine, nor an 

order assessing, a specific amount of 

restitution directly affects that judgment. 

 So, looking no further than the “reliability of the judgment of 

conviction” test could suggest a categorical rule foreclosing plain 

error review of all errors involving the amount of restitution. 
13 

¶ 31 Our supreme court has never addressed plain error when 

faced with a restitution error. In People v. Ortiz, 2016 COA 58, 

¶ 13, the division “review[ed] [the] defendant’s contention for plain 

error because he failed to argue in the district court that the state 

patrol was not a victim for restitution purposes.” Still, neither Ortiz

nor any other court of appeals opinion answers the question 

whether all unpreserved but obvious errors in the amount of a 

restitution award demand plain error reversal. 

¶ 32 But is trying to answer this question like a solution in search 

of a problem? We know that mathematics is “an exact science.” 

Chartrand v. Brace, 16 Colo. 19, 34, 26 P. 152, 157 (1891). From 

that perspective, every computational error in a restitution award 

that is more than de minimus could be said to undermine the 

fundamental fairness of the sentencing proceeding. And therein lies 

the problem. 

¶ 33 Embracing hastily such a broad approach would ignore the 

limitation that plain error restricts an appellate court “to 

correct[ing] particularly egregious errors.” Wilson v. People, 743 

P.2d 415, 420 (Colo. 1987). Yet, how do we draw a line between de 

minimus and “particularly egregious?” To do so, we circle back to 
14 

whether errors in calculating interest on a restitution award 

seriously affect the fairness, integrity, or public reputation of 

judicial proceedings.3 

¶ 34 Several federal circuits have rejected plain error claims that 

fail to meet the fourth element, without examining the other 

elements. See United States v. Maciel-Vasquez, 458 F.3d 994, 996 

(9th Cir. 2006) (“[The court] need not . . . construe condition [of 

supervised release for purposes of plain error review], because any 

error or prejudice caused by the district court’s decision to impose 

this condition did not seriously affect the fairness, integrity, or 

public reputation of the judicial proceedings.”); United States v. 

Keeling, 235 F.3d 533, 538 (10th Cir. 2000) (“Even if the first three 

elements of the plain error test are satisfied, where the evidence on 

a misdescribed or omitted element of the offense is overwhelming, 

 

3 Specially concurring in People v. Greer, 262 P.3d 920, 938 (Colo. 

App. 2011), Judge Jones said, “under the current state of the law in 

Colorado, I do not have the authority to apply the fourth prong 

articulated in Olano to an unpreserved claim of error. Whether that 

prong should be applied in plain error review under Crim. P. 52(b) 

is for the Colorado Supreme Court to decide.” In our view, however, 

our supreme court’s citation of the Young formulation in Hagos and 

Stackhouse — both announced after Greer — leave us free to follow 

federal authority. 
15 

the fourth element, that the error seriously affects the fairness, 

integrity, or public reputation of judicial proceedings, is not.”); 

United States v. Hunerlach, 197 F.3d 1059, 1069 (11th Cir. 1999) 

(“Even if we were to assume that the district court committed plain 

error, . . . Appellant must show that the error ‘seriously affect[s] the 

fairness, integrity or public reputation of judicial proceedings.’”) 

(citation omitted). 

¶ 35 Even so, in this case we eschew that approach because 

considering whether the trial court erred, and, if so, whether any 

error was obvious, shows that the relief to which Butcher would be 

entitled — while more than de minimus — is limited. We apply the 

error and obviousness factors as follows. 

 The original restitution order and the amended restitution 

order awarded identical amounts of prejudgment interest. 

Butcher now argues that the prejudgment interest in the 

amended restitution order should have been reduced to 

account for the offset to the principal based on the victim’s 

sale of the property. The record indicates that the victim 

recouped some of the investment in January 2015, which 

would have affected the amount of prejudgment interest, but 
16 

only if it had been calculated through the date of the amended 

order, some eight months later. See Roberts, 130 P.3d at 1009 

(noting prejudgment interest is based on the loss of use of the 

stolen money). And because the prosecutor took this offset 

into account when calculating postjudgment interest, we 

discern no error, and therefore no plain error, on this issue. 

 As for Butcher’s argument that the interest should have been 

simple interest rather than compounded monthly, the 

prosecutor’s proposed amended restitution orders list twelve 

percent as the “Rate of Interest” and “0.01” as the “monthly 

rate.” As well, the interest accrual goes up slightly each 

month on the same principal amount. That interest was being 

compounded monthly, from the date of the conviction, was 

obvious. Still, the postjudgment interest statute in effect at 

the time did not specify whether interest should be simple 

interest or compounded interest. See 2002 Colo. Sess. Laws 

at 1422. (It has since been amended to specify that it should 

be simple interest. See § 18-1.3-603(4)(b)(I), C.R.S. 2017.) 

Thus, error, if any, would not have been so clear cut and 

obvious that the trial court should have addressed the issue 
17 

sua sponte. See People v. Valdez, 2014 COA 125, ¶ 27 (where 

case law on an issue is unsettled, an error is not obvious). 

 Butcher also argues that the amended restitution order 

incorrectly calculated prejudgment interest (at eight percent) 

through the date of the conviction rather than the date of the 

amended restitution order and that postjudgment interest (at 

twelve percent) was calculated from the date of the conviction 

rather than after the date of the amended restitution order. 

The order recites that twelve percent interest was calculated 

“from the time of conviction.” In terms of postjudgment 

interest, the statute at issue at the time provided that the 

defendant owes interest “from the date of the entry of the 

order” at the rate of twelve percent annually. 2002 Colo. Sess. 

Laws at 1422; see also Roberts, 130 P.3d at 1006 

(Prejudgment interest should be awarded from the time the 

money is stolen “to the time a restitution award is entered.”). 

Therefore, we conclude that the trial court erred, and the error 

was obvious. See Sandoval, ¶ 12 (“We have previously 

explained that ‘[f]or an error to be obvious, the action 

challenged on appeal ordinarily must contravene (1) a clear 
18 

statutory command; (2) a well-settled legal principle; or (3) 

Colorado case law. Scott v. People, 2017 CO 16, ¶ 16.”).4 

¶ 36 Now, we are back to whether this one obvious error seriously

affects the fairness, integrity, or public reputation of judicial 

proceedings. Viewing the facts through the lens of the following 

precedent shows three reasons why it does not. 

 “Generally, courts have relied on the presence of 

‘overwhelming and uncontroverted evidence’ of guilt as a basis 

for finding that a plain error did not seriously affect the 

fairness, integrity or public reputation of judicial proceedings.” 

United States v. Hayat, 710 F.3d 875, 910 (9th Cir. 2013). The 

evidence of the principal amount Butcher owed as restitution, 

except for the modest offset that the trial court allowed, was 

uncontroverted. 

 

4 The Attorney General suggests that the trial court may have 

exercised its discretion to increase the rate of prejudgment interest 

from eight percent to twelve percent from the date of the conviction 

until the restitution orders were entered. The record in no way 

indicates that the trial court exercised its discretion in that way, 

nor did the prosecutor request that it do so. Rather, the record 

strongly suggests that prejudgment interest at the rate of eight 

percent was applied up to the date of the conviction, and that 

postjudgment interest at the rate of twelve percent was applied to 

the period following the date of conviction. 
19 

 “[A] sentencing error seriously affects the fairness, integrity, or 

public reputation of judicial proceedings when a court’s error 

results in imposition of a sentence which is not authorized by 

law.” United States v. Page, 232 F.3d 536, 544 (6th Cir. 2000). 

Butcher has never disputed that the trial court had statutory 

authority to include interest in the restitution award. 

 “When we apply the fourth element of plain error review to 

forfeited sentencing errors, the ‘key concern” is ‘whether 

correct application of the sentencing laws would likely 

significantly reduce the length of the sentence.’” United States 

v. Figueroa-Labrada, 720 F.3d 1258, 1268 (10th Cir. 2013) 

(emphasis added) (quoting United States v. Cordery, 656 F.3d 

1103, 1108 (10th Cir. 2011)). The one obvious error at most 

increased the amount Butcher owes by about 12.27%. (The 

amended restitution order calculated interest from November 

2012 until September 2015 at twelve percent rather than eight 
20 

percent, making the difference four percent over thirty-five 

months, compounded annually.)5 

¶ 37 For these reasons, we discern no serious effect on the fairness, 

integrity, or public reputation of judicial proceedings.6

¶ 38 Lastly, what about Ortiz? After all, we need say no more than 

that “one division of the court of appeals is not bound by a decision 

of another division.” People v. Abu-Nantambu-El, 2017 COA 154, 

¶ 88. Still, “we give such decisions considerable deference.” People 

v. Smoots, 2013 COA 152, ¶ 20. 

¶ 39 Ortiz does not indicate whether the Attorney General had 

challenged plain error review, as she does here. Perhaps for that 

 

5 The magnitude could be even less — accrual at eight percent 

rather than twelve percent for fifteen months (November 2012 

through January 2014). Butcher cites no authority supporting his 

assumption that reconsideration of the January order in September 

2015 alters the “date of the restitution order” for purposes of 

treating further interest as postjudgment. Nor have we found a 

Colorado statute or decision saying that a later modification of the 

amount of an otherwise valid judgment alters the date of the 

original judgment for this purpose. 

6 Of course, a mere interest error does not implicate “the stigma of a 

conviction and the burden of prison time.” People v. Stewart, 55 

P.3d 107, 119 (Colo. 2002). But see People v. Hill, 296 P.2d 121, 

125 n.3 (Colo. App. 2011) (a defendant could have a legal 

malpractice claim against attorney who rendered ineffective 

assistance concerning restitution). 
21 

reason, the division did not ask whether the error seriously affected 

the fairness, integrity, or public reputation of judicial proceedings. 

And in any event, the error alleged in Ortiz would have wiped out 

the entire restitution award, not just — as here — a small part of 

the interest. 

¶ 40 In conclusion, we exercise our discretion under Crim. P. 52(b) 

and decline to disturb the postjudgment interest award for plain 

error.7

IV. Conclusion 

¶ 41 The order is affirmed. 

JUDGE TOW and JUDGE CASEBOLT concur. 

 

7 In saying this much, we take care to point out what we are not 

saying: that a restitution error of about $7500 to $15,000 — the 

magnitude of error at issue — could never satisfy the “seriously” 

test. For example, such an error might constitute the entire 

restitution award or double the amount awarded. We leave the 

resolution of such cases for another day.