Peo v. Rael

22CA1069 Peo v Rael 10-10-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1069
Pueblo County District Court No. 21CR1361
Honorable Allison P. Ernst, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Thomas Gene Rael,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE LIPINSKY
J. Jones and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 10, 2024

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney
General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, M. Shelby Deeney, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Thomas Gene Rael appeals his conviction for possession of a

weapon by a previous offender (POWPO) under section

18-12-108(1), C.R.S. 2021. He presents a single contention in this

appeal: that, under the plain error standard of review, we must

vacate his conviction in light of New York State Rifle & Pistol Ass’n

v. Bruen, 597 U.S. 1 (2022), which the United States Supreme

Court decided following Rael’s trial and sentencing. Rael argues

that, under Bruen, section 18-12-108(1), C.R.S. 2021, is facially

unconstitutional and unconstitutional as applied to him.

¶2 We affirm.

I. Background

¶3 Rael and his brother gave a ride to an acquaintance. Rael’s

brother pulled into a gas station to add air to a tire. While the

group was at the gas station, the acquaintance walked away,

leaving a gun in the brother’s car. Rael and his brother began to

argue. Rael left his brother and took the gun with him.

¶4 Officer Scott Aubuchon was dispatched after police received a

report of a man with a weapon at the gas station. Officer Aubuchon

pulled up in his vehicle and saw Rael, who matched the

dispatcher’s description of the man with the gun.

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¶5 Rael ran in the opposite direction. When Officer Aubuchon

reached Rael, he noticed a gun on the ground near Rael and

arrested him. Because Rael had a previous felony conviction, the

prosecution charged him with one count of POWPO under section

18-12-108(1), C.R.S. 2021.

¶6 At trial, defense counsel did not dispute that Rael had a prior

felony conviction. Rather, the defense argued that Rael did not

possess the gun for purposes of section 18-12-108(1), C.R.S. 2021,

because he was attempting to return it to the acquaintance. The

prosecutor responded that Rael knowingly possessed the gun in

violation of section 18-12-108(1), C.R.S. 2021, regardless of

whether he intended to return it to the acquaintance.

¶7 Rael was convicted as charged. The court sentenced him to

two years in community corrections.

II. Analysis

¶8 Rael contends that we must vacate his conviction because,

under Bruen, section 18-12-108(1), C.R.S. 2021, violates the

Second Amendment to the United States Constitution, both on its

face and as applied to him.

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A. Preservation and Standard of Review

¶9 The parties do not dispute that Rael did not preserve his

constitutional arguments. Thus, we review for plain error. See

Hagos v. People, 2012 CO 63, ¶ 14, 288 P.3d 116, 120 (explaining

that we review all nonstructural errors, including constitutional

errors, not preserved by objection for plain error); 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.”).

“Crim. P. 52(b) permits review if (1) there is an error, (2) that is

plain, and (3) that affects the defendant’s substantial rights.”

People v. Crabtree, 2024 CO 40M, ¶ 41, 550 P.3d 656, 667. (Rael

does not contend that the alleged error was structural.)

¶ 10 An alleged error cannot be plain if it was not obvious. See

People v. Vigil, 251 P.3d 442, 447 (Colo. App. 2010). A plain error is

an error that is “so clear cut and so obvious that a trial judge

should have been able to avoid it without benefit of objection.”

People v. Conyac, 2014 COA 8M, ¶ 54, 361 P.3d 1005, 1020.

“Consequently, to be deemed plain, an error must contravene a

clear statutory command, a well-settled legal principle, or

established Colorado case law.” Crabtree, ¶ 42, 550 P.3d at 667.

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“Conversely, when Colorado statutory law or case law would not

have alerted the trial judge to an unobjected-to error, the error

cannot be deemed plain.” Id.

¶ 11 Earlier this year, in Crabtree, the supreme court decided an

unsettled issue of Colorado law — whether, following the United

States Supreme Court’s adoption of the time-of-appeal rule in

Henderson v. United States, 568 U.S. 266, 279 (2013), Colorado

courts should review unpreserved errors for obviousness by looking

to the state of the law at the time of appellate consideration.

Crabtree, ¶ 4, 550 P.3d at 660. The supreme court rejected the

time-of-appeal rule and held that, under Colorado law, an error is

plain only if it was obvious at the time of trial. Id. at ¶¶ 18, 56-57,

550 P.3d at 663, 669.

¶ 12 In rejecting the time-of-appeal rule, the supreme court

explained that “we have historically employed a different plain error

standard than the one the Supreme Court uses.” Id. at ¶ 49, 550

P.3d at 668. “Because [Colorado’s] time-of-trial rule was not

originally erroneous and continues to be sound, there is no basis to

stray from principles of stare decisis and switch to a time-of-appeal

rule.” Id. at ¶ 6, 550 P.3d at 661.

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¶ 13 In its analysis, the court noted the material differences

between Crim. P. 52(b) and its federal analogue:

In contrast to Colorado’s Crim. P. 52(b)
standard, the Supreme Court’s Fed. R. Crim.
P. 52(b) standard authorizes (but does not
require) appellate courts to grant a defendant
relief if (1) there is an error; (2) that is plain
(i.e., that is clear or obvious); (3) that affects
the defendant’s substantial rights; and (4) that
seriously affects the fairness, integrity, or
public reputation of judicial proceedings.

Id. at ¶ 49, 550 P.3d at 668. The court explained that “unlike the

federal system, Colorado has a postconviction vehicle to address a

‘significant change in the law’ during the pendency of a direct

appeal,” id. at ¶ 6, 550 P.3d at 661 (quoting Crim. P. 35(c)(1)), and

that “the Supreme Court allayed concerns about the prospect of

opening the ‘‘‘plain error’ floodgates” by relying on, among other

things, the screening criterion that’s part of the federal plain error

standard but absent from Colorado’s plain error standard,” id.

(quoting Henderson, 568 U.S. at 276).

¶ 14 Thus, the supreme court concluded in Crabtree that “relief

under Crim. P. 52(b) is only available if the error is plain at the time

it is made.” Id. at ¶ 72, 550 P.3d at 671.

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B. Rael Fails to Establish Plain Error Because,
Even if the Court Erred, Any Error Was Not Obvious
at the Time of His Trial and Sentencing

¶ 15 The substantive law germane to Rael’s arguments changed

between his trial and this appeal; the United States Supreme Court

decided Bruen during that period. Bruen was indeed a landmark

Second Amendment case. The petitioners in Bruen challenged the

constitutionality of a New York statute requiring applicants for an

unrestricted license to “have and carry” a concealed “pistol or

revolver” to “prove that ‘proper cause exists’ to issue it.” 597 U.S. at

11-13 (quoting N.Y. Penal Law § 400.00(2)(f) (McKinney 2022)). The

Supreme Court held that the “proper cause” requirement violated

the Second Amendment right to bear arms because the

Constitution protects an individual’s right to carry a handgun in

public for self-defense, and states cannot impose subjective

standards to restrict this right. Id. at 70-71. Bruen further

established that firearm regulations cannot withstand

constitutional muster unless they are “consistent with this Nation’s

historical tradition of firearm regulation.” Id. at 17.

¶ 16 We do not reach the merits of Rael’s argument that section

18-12-108(1), C.R.S. 2021, is unconstitutional in light of Bruen.

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Nor do we decide whether Rael’s argument is undercut by the

Supreme Court’s recent rejection of a facial challenge to the

constitutionality of a federal statute prohibiting firearm possession

by individuals subject to domestic violence restraining orders that

include a finding that the individual “represents a credible threat to

the physical safety” of an intimate partner, or a child of the partner

or individual. United States v. Rahimi, 602 U.S. ___, ___, 144 S. Ct.

1889, 1894, 1901-02 (2024) (quoting 18 U.S.C. § 922(g)(8)(C)(i)).

¶ 17 Rael urges us to look to the current state of Second

Amendment jurisprudence and to decide that the trial court plainly

erred by not striking down section 18-12-108(1), C.R.S. 2021,

under the reasoning of Bruen. Put simply, when he filed his appeal,

Rael bet that the supreme court would adopt the time-of-appeal

rule (or at least not reaffirm the time-of-trial rule). But he lost his

bet when the court rejected the time-of-appeal rule in Crabtree.

¶ 18 Following Crabtree, we must look to the state of the law at the

time of Rael’s trial and sentencing to determine whether any error

was obvious and, thus, plain. (Rael does not argue that Crabtree

only applies prospectively. Because Crabtree reaffirmed the pre-

Henderson Colorado case law applying the time-of-trial rule, it has

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retroactive effect. Cf. People v. Melendez, 2024 COA 21M, ¶ 1, 549

P.3d 1028, 1030 (“Decisions announcing a new constitutional rule

of criminal procedure generally do not apply retroactively.”).)

¶ 19 Rael acknowledges that the alleged error underlying his appeal

was not obvious at the time of trial because the Supreme Court did

not announce Bruen until after he had been convicted and

sentenced. No pre-Bruen federal or Colorado legal authority would

have alerted the trial judge that it needed to sua sponte declare

section 18-12-108(1), C.R.S. 2021, unconstitutional. The pre-Bruen

case law was to the contrary. See, e.g., People v. Marques, 498 P.2d

929, 929 (Colo. 1972) (summarily rejecting the defendant’s

argument that the crime of carrying a concealed weapon after a

previous criminal conviction deprived him of his Second

Amendment right to bear arms).

¶ 20 For these reasons, we hold that the alleged error underlying

Rael’s appellate arguments was not obvious under the time-of-trial

rule. Thus, even if the court erred by not declaring section

18-12-108(1), C.R.S. 2021, unconstitutional, such error was not

plain. See People v. Dinapoli, 2015 COA 9, ¶ 31, 369 P.3d 680, 685.

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Therefore, under the plain error standard of review, we reject Rael’s

constitutional attacks on section 18-12-108(1), C.R.S. 2021.

C. We Need Not Examine Any Arguments that Rael
Raised for the First Time in His Supplemental Brief

¶ 21 The division requested supplemental briefing on three issues.

The first issue focused on whether Rael’s plain error argument

remained viable after Crabtree. We specifically asked the parties to

address

[h]ow . . . the district court plainly err[ed],
given the Colorado[] Supreme Court’s decision
in People v. Crabtree, 2024 CO 40M, that an
“error is plain at the time it is made”; Mr.
Rael’s concession that “the error here was not
obvious at the time of trial,” Reply Brief at 5;
and the fact that the United States Supreme
Court had not decided New York State Rifle &
Pistol Ass’n, v. Bruen, 597 U.S. 1 (2022), at the
time that Mr. Rael was convicted and
sentenced?

¶ 22 We requested supplemental briefing on the second and third

issues only if Rael or the People believed that “Mr. Rael’s plain error

argument remains viable following Crabtree.” Those issues

concerned whether “the United States Supreme Court’s decision in

[Rahimi] impact[ed] Mr. Rael’s appellate arguments and, if so, how”

and whether the division should “request additional briefing —

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including briefing from amicus curiae — on the application of Bruen

and Rahimi to section 18-12-108(1), C.R.S. 2023.”

¶ 23 In his supplemental brief, Rael argued that, regardless of the

standard for plain error review, we should reverse his conviction

because he was convicted under an unconstitutional statute. He

alternatively argued that we should disregard Crabtree and apply

the time-of-appeal rule. Finally, Rael asked us to grant a limited

remand to allow him to seek relief in the district court under Crim.

P. 35(c)(1).

¶ 24 We need not consider arguments that Rael raised for the first

time in his supplemental brief and on which we did not request

supplemental briefing, just as we do not consider issues first raised

in a reply brief. See United States v. Bonilla-Mungia, 422 F.3d 316,

319 (5th Cir. 2005). In any event, the three arguments raised in

Rael’s supplemental brief fail on the merits.

¶ 25 First, even though Rael conceded in his opening and reply

briefs that the plain error standard applies to his appeal, in his

supplemental brief, he changed course and argued that, even

though he did not preserve the issue, we should reverse his

conviction because it rested on an unconstitutional statute.

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¶ 26 But Rael cannot circumvent the plain error standard of review,

even if section 18-12-108(1), C.R.S. 2021, does not survive Bruen.

An unpreserved constitutional challenge to a statute is subject to

plain error review. See Crabtree, ¶ 27, 550 P.3d at 664; Johnson v.

People, 2023 CO 7, ¶ 28, 524 P.3d 36, 42. For the reasons

explained above, Rael’s unpreserved arguments fail because the

United States Supreme Court decided Bruen after his conviction

and sentencing, and, therefore, any error was not obvious and thus

was not plain.

¶ 27 Second, Rael asks us to disregard Crabtree and adopt the

federal time-of-appeal approach. However, we are bound by

Colorado Supreme Court precedent. Melendez, ¶ 19, 549 P.3d at

1033. We have no discretion to ignore Crabtree.

¶ 28 Third, Rael requests that we grant a limited remand to allow

him to seek relief from the district court under Crim. P. 35(c)(1).

¶ 29 Crim. P. 35(c) proceedings are distinct from direct criminal

appeals. See Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007)

(discussing Crim. P. 35(c) postconviction proceedings generally).

Following the conclusion of this appeal, Rael can file a Crim. P.

35(c)(1) motion challenging his conviction in the district court. See

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People v. Wood, 2019 CO 7, ¶ 11 n.5, 433 P.3d 585, 589 n.5.

(Under Crim. P. 35(c)(1), a convicted defendant may seek

postconviction review “upon the ground that there has been a

significant change in the law, applied to the applicant’s conviction

or sentence, allowing in the interests of justice retroactive

application of the changed legal standard.”) We express no opinion

regarding Rael’s entitlement to relief under Crim. P. 35(c)(1).

¶ 30 In any event, a remand is unnecessary because the record is

adequate to permit a proper appellate review of Rael’s unpreserved

constitutional challenge to section 18-12-108(1), C.R.S. 2021. See

People v. Welsch, 740 P.2d 524, 524-25 (Colo. 1987).

III. Disposition

¶ 31 The judgment is affirmed.

JUDGE J. JONES and JUDGE SULLIVAN concur.

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