People v. Notyce

2014 COA 52, 328 P.3d 302, 2014 WL 1647591, 2014 Colo. App. LEXIS 688

• Court: Colorado Court of Appeals
• Decided: April 24, 2014
• Docket: Court of Appeals No. 12CA0430
• Status: Published

Opinions

Opinion by

JUDGE BOORAS

1 1 Defendant, Franklin Alfred Notyce, appeals following remand for resentencing in People v. Notyce, (Colo.App. No. 09CA0999, 2010 WL 4132885, Oct. 21, 2010) (not published pursuant to C.AR. 35(F)) (Wotyce I). He challenges the original judgment of convietion for theft on two grounds: the trial court erred in refusing to suppress photographs of the allegedly stolen items; and, in closing argument, the prosecutor improperly referenced defendant's exercise of his right to remain silent. He also appeals the twenty-four-year sentence imposed on remand. We affirm the sentence.

I. Original Judgment of Conviction

12 We decline to address defendant's claims of error as to his jury trial. As the result of the prosecution's appeal of defendant's initial sentence in Notyce I, this case was specifically remanded to the trial court for resentencing to the twenty-four-year sentence required under the habitual eriminal statute. Defendant now appeals from that remand proceeding. Therefore, defendant's challenges to his jury trial are outside the limited seope of the remand, and, accordingly, we will not address them. See People v. Grassi, 2011 WL 4837291, at *5 (Colo.App. No. 09CAO0A4OON, Oct. 18, 2011) (declining to address argument raised on appeal from proceedings on remand as "outside the limited seope of the remand"); see also United States v. Stuckey, 255 F.3d 528, 531 (8th Cir.2001) ("A defendant does not receive a second chance to support an argument he failed to support in a first appeal simply because he is resentenced."); People v. Burks, 128 Mich.App. 255, 339 N.W.2d 734, 735 (1983) (issues concerning the validity of the defendant's guilty plea would not be considered on appeal from a remand for resen-tencing because they did not arise as a result of the resentencing, and thus were outside the seope of the remand order).

II Sentencing on Remand

T3 Defendant also challenges the way in which the court imposed his sentence on remand. Specifically, he argues that the sentence mandated by Notyee I "should be imposed Nune pro Tune to his original date of sentencing," thus allowing the time he served between his original sentencing and resentencing to be eligible for earned good time credits. Instead, the court treated the time between his original sentence and re-sentencing as presentencing confinement, which, according to defendant, makes this time ineligible for earned good time credits.

14 Defendant has failed to indicate where he raised this issue below. C.A.R. 28(k) requires that "[fJor each issue raised on appeal, the party raising such issue must provide, under a separate heading placed before discussion of the issue ... a citation to the precise location in the record where the issue was raised and ruled on." This rule "relieve[s] courts from the burden of having to search records to determine whether (and, if so, how) issues had been raised and resolved in the trial courts." O'Quinn v. Baca, 250 P.3d 629, 631 (Colo.App.2010). Because of defendant's C.A.R. 28(k) violation, we will review only for plain error. See Crim. P. 52(b).

15 In the answer brief, the Attorney General asserted that defendant's sentencing argument is not properly postured for appellate review, given his failure to "provide any analysis or meaningful argument to support his claim." We decline to address this assertion because we discern no plain error, for the following reasons:

e Under plain error review, the error must "be so clear-cut, so obvious, that a trial judge should be able to avoid it without benefit of objection." People v. Pollard, 2013 COA 31, 1 39, 307 P.3d 1124.

e "[We need not decide whether the court actually erred if it is clear that the alleged error was not obvious." People v. Vigil 251 P.3d 442, 447 (Colo.App.2010). ' '

e An error is not obvious, and therefore cannot be plain, where "nothing in our statutes or previous case law would have alerted the court" to the error. People v. Mendoza, 313 P.3d 637, 641 n. 4 (Colo.App.2011); see also People v. Zubiate, 2013 COA 69, 124, - P.3d -- (an error "may be obvious if the issue has been decided by a division of this court or the Colorado Supreme Court, or if the trial court has erroneously applied statutory law").

* Defendant concedes the lack of "any case law or statutory authority supporting his contention."

T6 Thus, error, if any, was not obvious, and could not have been plain. Accordingly, without addressing the merits of defendant's sentencing contention, we discern no plain error.

III. Conclusion

¶ 7 The sentence is affirmed.

JUDGE NEY * concurs. JUDGE WEBB specially concurs.