text:
    Juvenal Onel GARCIA, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    Supreme Court Case No. 17SC147
    Supreme Court of Colorado.
    June 24, 2019 Petition for Rehearing Denied August 19, 2019
    Attorneys for Petitioner: Megan A. Ring, Public Defender, Ned R. Jaeckle, Deputy Public Defender, Denver, Colorado
    Attorneys for Respondent: Philip J. Weiser, Attorney General, William G. Kozeliski, Assistant Attorney General, Denver, Colorado
    En Banc
   JUSTICE HOOD delivered the Opinion of the Court.

¶1 A restraining order prohibited defendant Juvenal Onel Garcia from contacting C.G. Almost two years after the issuance of the restraining order, Garcia allegedly attempted to sexually assault C.G. Based on events related to that criminal episode, a jury convicted Garcia of first degree burglary, attempted sexual assault, unlawful sexual contact, third degree assault, violation of a protection order, and obstruction of telephone service.

¶2 Garcia appealed, raising two unpreserved claims: (1) the trial court improperly instructed the jury regarding the sexual assault charge; and (2) the trial court improperly instructed the jury regarding the force sentence enhancer related to his attempted sexual assault conviction.

¶3 Because the alleged errors weren't preserved at trial, they are subject to plain error review. See Tumentsereg v. People , 247 P.3d 1015, 1019 (Colo. 2011). This means that Garcia's convictions won't be overturned unless at least one error was "both obvious and substantial." See People v. Miller , 113 P.3d 743, 750 (Colo. 2005). To constitute a basis for reversal, any such error must have "so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction." Hagos v. People , 2012 CO 63, ¶ 18, 288 P.3d 116, 121 (quoting Wilson v. People , 743 P.2d 415, 420 (Colo. 1987) ).

¶4 A division of the court of appeals affirmed Garcia's convictions. First, it concluded that any error regarding the sexual assault instruction wasn't obvious because the instruction matched "the Model Jury Instructions that existed at th[e] time" of trial. People v. Garcia , 2017 COA 1, ¶ 10, --- P.3d ----. Next, the division concluded that because a published court of appeals opinion refuted Garcia's contention regarding the sentence enhancer, any instructional error wasn't obvious, and thus wasn't plain. Id. at ¶ 26.

¶5 Having agreed to review the judgment of the division, we consider: (1) whether the division incorrectly held that an instructional error is not plain if it tracks the model jury instruction existing at the time of trial; (2) whether plain error should be assessed at the time of trial or the time of direct appeal; and (3) whether the sentence enhancer requires proof of the mens rea "knowingly."

¶6 We conclude that the division erred in holding that simply following the model instructions avoids plain error. But, for different reasons, we agree that any error regarding the sexual assault instruction doesn't require reversal. We do so because Garcia failed to show that any error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of Garcia's convictions. Because we resolve this issue based on lack of prejudice, we need not reach the question of whether the obviousness of an error should be assessed at the time of trial or the time of direct appeal. We also conclude that the force sentence enhancer doesn't include a mens rea requirement, and, therefore, there was no error with respect to that instruction.

¶7 Accordingly, we affirm the judgment of the court of appeals.

I. Facts and Procedural History

¶8 Garcia and C.G. met in middle school, married when C.G. turned 18, and have two children together. In 2010, they separated, and in August 2010, a protection order was issued prohibiting Garcia from contacting C.G. However, Garcia, C.G., and their children continued to participate in some family outings together, and Garcia would occasionally babysit their children.

¶9 On the night of April 12, 2012, Garcia had agreed to babysit the children in C.G.'s home. But he arrived hours late. C.G. testified that Garcia was drunk when he arrived, so she told him to leave. Garcia left, taking C.G.'s car. He didn't return for several hours, prompting C.G. to report her car stolen to the police.

¶10 Around 4:00 a.m., Garcia returned and entered the apartment using a key he had taken with him. Garcia and C.G. both testified that a physical altercation ensued.

¶11 C.G. testified that, when Garcia returned with the car, she told him to leave. But Garcia didn't leave. Instead, she testified, he pulled her pants, ripped her underwear, held her down, and attempted to penetrate her. But she successfully fought him off.

¶12 Garcia argued consent. He testified that he fell asleep in C.G.'s home after returning with the car and awoke to C.G. shaking him; she attacked him and then they "both ended up on the bed," where he believed they were going to have consensual sex; they "both ended up naked" and made sexual contact, but he stopped the encounter before any penetration occurred.

¶13 The jury found Garcia guilty of first degree burglary, attempted sexual assault, unlawful sexual contact, third degree assault, violation of a protection order, and obstruction of telephone service. The trial court sentenced him to concurrent terms of ten years for first degree burglary, ten years to life for attempted sexual assault, and ten years to life for unlawful sexual contact.

¶14 Garcia appealed. As relevant here, he argued (1) that "the trial court erred by failing to apply the 'knowingly' mens rea to the 'caused submission' element of the offense[ ] of ... attempted sexual assault" and (2) that the trial court erred in elevating his attempted sexual assault conviction to a class 4 (as opposed to a class 5) felony "because the jury did not find that he knowingly used force to cause submission." Garcia , ¶ 4.

¶15 A division of the court of appeals unanimously affirmed Garcia's convictions. Id. at ¶ 48. It concluded that any error with respect to the attempted sexual assault instruction wasn't obvious because the instruction matched "the Model Jury Instructions that existed at th[e] time" of trial. Id. at ¶ 10. With respect to the sentence enhancer, the division observed that a published court of appeals opinion, People v. Santana-Medrano , 165 P.3d 804, 807 (Colo. App. 2006), considered the same issue and held that the sentence enhancer doesn't require proof of a mens rea. Garcia , ¶ 25. Because a published opinion explicitly rejected Garcia's contention, the division concluded that any error wasn't plain error because it wasn't obvious. Id. at ¶ 26.

¶16 Garcia petitioned this court for certiorari.

II. Analysis

¶17 First, we address Garcia's contention that the trial court committed reversible plain error when it gave the jury a sexual assault instruction that didn't apply the "knowingly" mens rea to the "caused submission" element. Second, we examine whether the "knowingly" mens rea applies to the force sentence enhancer. We conclude that any error regarding the sexual assault instruction doesn't require reversal and that the force sentence enhancer doesn't require proof of a mens rea.

A. The Sexual Assault Instruction

¶18 The trial court gave the jury a sexual assault instruction that didn't explicitly tell the jury to apply the "knowingly" mens rea to the "caused submission" element of the attempted sexual assault offense. See id. at ¶¶ 5-6. Garcia argues that this constitutes reversible plain error. The division disagreed, concluding that any error wasn't obvious because the instruction matched "the Model Jury Instructions that existed at th[e] time" of trial. Id. at ¶ 10.

¶19 We conclude that following a model jury instruction doesn't automatically avoid plain error. However, we conclude that the sexual assault instruction here doesn't require reversal because there is no reasonable possibility that any error contributed to Garcia's conviction.

1. Plain Error

¶20 Because the two alleged errors are unpreserved, Garcia's convictions will not be overturned unless any error was plain. See Tumentsereg , 247 P.3d at 1019.

¶21 To constitute plain error, an error must be "both obvious and substantial." Miller , 113 P.3d at 750. To require reversal, such error must "so undermine[ ] the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction." Hagos , ¶ 18, 288 P.3d at 121 (quoting Wilson , 743 P.2d at 420 ). In other words, we must "determine whether a reasonable possibility exists that [any] error contributed to [the] conviction." People v. Lozano-Ruiz , 2018 CO 86, ¶ 5, 429 P.3d 577, 578.

2. Simply Following Model Instructions Doesn't Avoid Plain Error

¶22 The division concluded that any error regarding the sexual assault instruction wasn't plain because the instruction matched "the Model Jury Instructions that existed at th[e] time" of trial. Garcia , ¶ 10. We disagree. As the preamble of the model instructions made clear at the time of Garcia's trial, the model instructions weren't "approved as accurate reflections of the law" and were merely "intended as helpful resource material." Preface, COLJI-Crim. (2008). They are not a safe harbor that insulates instructional error from reversal.

¶23 We demonstrated as much in Auman v. People , 109 P.3d 647 (Colo. 2005). In Auman , we considered an instruction that failed to track the precise language of the felony-murder statute. Id. at 660. The division below concluded "that the trial court's failure to properly instruct the jury ... did not constitute plain error because the instruction followed the recommended language of the Colorado Criminal Jury Instruction." Id. at 655. We agreed that the error wasn't reversible, but on different grounds. See id. at 661. Instead of relying on the language of the model instruction, we reasoned that, despite any error, the instruction's language "was well within the comprehension of the jury." See id. at 660. By departing from the reasoning of the division below, we implied that tracking the model instruction wasn't enough to avoid plain error. To the extent we have never said as much explicitly, we do so now.

3. Any Error Doesn't Require Reversal Because It Didn't Undermine the Fundamental Fairness of the Trial

¶24 While we disagree with the division's reasoning, we still agree that the sexual assault instruction didn't constitute reversible plain error. We conclude instead that any error didn't undermine the fundamental fairness of the trial, see Hagos , ¶ 18, 288 P.3d at 121, because there's no reasonable probability that any error contributed to Garcia's conviction, see Lozano-Ruiz , ¶ 5, 429 P.3d at 578.

¶25 The elemental instruction effectively communicated the "knowingly" mens rea to the jury. "A person acts 'knowingly' ... with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists." § 18-1-501(6), C.R.S. (2018). "A person acts " 'knowingly' ..., with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result." Id. The trial court instructed the jury that the defendant must have "caused submission of the person by means of sufficient consequence reasonably calculated to cause submission against the person's will." Garcia , ¶ 6. So, regardless of whether the trial court adequately instructed the jury that the defendant must knowingly cause submission, it did instruct the jury that the defendant must use means "reasonably calculated to cause submission." And because "calculated" means (as relevant here) "[u]ndertaken after close consideration of the probable outcome" or "[p]lanned so as to achieve a specific purpose; deliberate," Calculated , Black's Law Dictionary (10th ed. 2014), one can't make a reasonably calculated action unknowingly. See People v. Smith , 638 P.2d 1, 5 n.7 (Colo. 1981) (observing that "the phrase 'of sufficient consequence reasonably calculated' [to cause submission against the victim's will] clearly implies that the actor must be aware that his or her conduct is sufficient in character and degree to be likely to cause nonconsensual submission"); People v. Komar , 2015 COA 171M, ¶ 42, 411 P.3d 978, 987 ("The reasonable calculation component indicates that defendant must have actively considered that his conduct would overcome [the victim's] will not to engage in sexual intercourse with him.").

¶26 Additionally, whether Garcia attempted to knowingly cause submission was never directly called into question; Garcia put forward an unrelated consent defense. In essence, he argued that he never acted to cause submission at all . The record demonstrates that the conviction resulted from a rejection of Garcia's consent defense-not from any confusion about whether Garcia needed to knowingly cause submission.

¶27 Given the similarity of the "reasonable calculation" element and the mens rea requirement, and the fact that whether Garcia knowingly caused submission was never at issue, we conclude that there's no reasonable possibility that any instructional error contributed to Garcia's conviction. See Lozano-Ruiz , ¶ 5, 429 P.3d at 578. Therefore, any error didn't undermine the fundamental fairness of the trial. See Hagos , ¶ 18, 288 P.3d at 121.

¶28 Because we conclude that any error doesn't require reversal, we need not consider whether it was "obvious." See People v. Miller , 113 P.3d at 750. Thus, we don't reach the question of whether plain error should be assessed at the time of trial or the time of direct appeal.

B. The Sentence Enhancer

¶29 Sexual assault is generally a class 4 felony. See § 18-3-402(2), C.R.S. (2018). However, if a defendant "causes submission of the victim through the actual application of physical force or physical violence," it's elevated to a class 3 felony. See § 18-3-402(4)(a). "[C]riminal attempt to commit a class 3 felony is a class 4 felony." § 18-2-101(4), C.R.S. (2018). Thus, if in the course of attempting to commit sexual assault, a defendant "causes submission of the victim through the actual application of physical force or physical violence," he commits a class 4 felony. See §§ 18-2-101(4), 18-3-402(4)(a).

¶30 The trial court instructed the jury that, if Garcia was found guilty of attempted sexual assault, the jury "should determine whether he attempted 'to cause submission of the person through the actual application of physical force or physical violence.' " Garcia , ¶ 6. The jury found that he did, and Garcia was convicted of class 4 attempted sexual assault.

¶31 Garcia argues that the jury should have been instructed that the mens rea of "knowingly" applied to the sentence enhancer and that this omission constituted reversible plain error. The division found no plain error, see Garcia , ¶ 26, noting that a published court of appeals opinion, Santana-Medrano , 165 P.3d at 807, considered this very issue and held that the sentence enhancer doesn't require proof of a mens rea, Garcia , ¶ 25.

¶32 We go one step further and conclude that Santana-Medrano was correct. In other words, we conclude that the force sentence enhancer doesn't include a mens rea requirement, and, therefore, the trial court didn't err.

1. Standard of Review

¶33 We review issues of statutory construction de novo. See Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc. , 2019 CO 51, ¶ 40, 442 P.3d 402.

2. The Force Sentence Enhancer Doesn't Include a Mens Rea Requirement

¶34 In Santana-Medrano , a division of the court of appeals addressed an argument identical to the one before us-that "the trial court erroneously instructed the jury on the sexual assault [force enhancer] because the physical force or violence instruction did not require the jury to determine that the mens rea 'knowingly' applied to that finding." Santana-Medrano , 165 P.3d at 806. The Santana-Medrano division found no error. See id.

¶35 First, the division noted that "[s]tatutory provisions that raise the felony level of an offense are generally regarded as sentence enhancement provisions, not elements of the charged offense." Id. at 806-07 (citing Vega v. People , 893 P.2d 107, 113 (Colo. 1995) ; Armintrout v. People , 864 P.2d 576, 580 (Colo. 1993) ).

¶36 Next, the division considered our opinion in Whitaker v. People , 48 P.3d 555 (Colo. 2002). In Whitaker , we considered whether the General Assembly intended the sentencing provisions of section 18-18-405, C.R.S. (2006), to include mens rea requirements. See id. Because the statute separated the elements of the offenses from the factors resulting in differing levels of punishment, we concluded that the "statutory structure demonstrate[d] the General Assembly's intent to separate sentencing factors, such as drug type and quantity, from the elements of the crime." Id. at 558. Thus, we concluded, unlike elements, the sentencing factors don't require proof of a mens rea. Id. at 559.

¶37 The Santana-Medrano division concluded that the sexual assault sentence enhancers are analogous to those in Whitaker . See Santana-Medrano , 165 P.3d at 807. The division observed that the substantive elements of sexual assault are enumerated in section 18-3-402(1)(a), whereas the force sentence enhancer is enumerated in section 18-3-402(4). See id. The division deduced that "[t]he provisions of [ section] 18-3-402(4) do not set forth separate offenses or define an additional substantive element of the crime of sexual assault." Id. Therefore, no proof of a mens rea is required to elevate the level of a defendant's conviction. Id. "Instead, the plain language of the statute, read as a whole, demonstrates the General Assembly's intent that those offenders who use physical force or violence during a sexual assault should be punished more severely than offenders who do not." Id. at 807-08. Accordingly, the division concluded that the trial court didn't err in instructing the jury. Id. at 808.

¶38 We agree with the Santana-Medrano division's reasoning. We conclude on the same basis that the force sentence enhancer doesn't include a mens rea requirement. Thus, we affirm the division's judgment here. The trial court didn't err with respect to the sentence enhancer instruction.

III. Conclusion

¶39 We conclude that the division erred in holding that simply following the model instructions avoids plain error. But, for different reasons, we agree that any error regarding the sexual assault instruction doesn't require reversal. We do so because Garcia failed to show that any error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of Garcia's convictions. Because we resolve this issue based on lack of prejudice, we need not reach the question of whether the obviousness of an error should be assessed at the time of trial or the time of direct appeal. We also conclude that the force sentence enhancer doesn't include a mens rea requirement, and, therefore, there was no error with respect to that instruction.

¶40 Accordingly, we affirm the judgment of the court of appeals.

      We granted certiorari to address the following issues:
      1. [REFRAMED] Whether the court of appeals erred in holding than an instructional error is not plain under the plain error standard if the erroneous instruction tracks the model jury instruction existing at the time of trial.
      2. [REFRAMED] Whether the court of appeals erred in holding that an instructional error is not plain even though the error was plain at the time of direct appeal.
      3. [REFRAMED] Whether by consolidating the first- and second-degree sexual assault statutes into a single statute in 2000, the General Assembly intended the circumstances specified in section 18-3-402(4), C.R.S. (2017) to no longer require proof of the mens rea "knowingly" in order to elevate sexual assault to a class three felony.

      The instruction stated:
      The elements of the crime of sexual assault are:
      1. That the defendant,
      2. in the State of Colorado at or about the date and place charged,
      3. knowingly, inflicted sexual penetration, or sexual intrusion, on a person, and
      4. caused submission of the person by means of sufficient consequence reasonably calculated to cause submission against the person's will.

      After the trial, the model instruction changed to make it more clear that the mens rea modifies each conduct element. It now states:
      The elements of the crime of sexual assault (submission against will) are:
      1. That the defendant,
      2. in the State of Colorado, at or about the date and place charged,
      3. knowingly
      4. inflicted sexual intrusion or penetration on a person, and
      5. caused submission of the person by means of sufficient consequence reasonably calculated to cause submission against the person's will.
      [6. and that the defendant's conduct was not legally authorized by the affirmative defense[s] in Instruction[s] ___.]
      After considering all the evidence, if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the defendant guilty of sexual assault (submission against will).
      After considering all of the evidence, if you decide the prosecution has failed to prove any one or more of the elements beyond a reasonable doubt, you should find the defendant not guilty of sexual assault (submission against will).
      COLJI-Crim. 3-4:01 (2018).


source: Caselaw Access Project

author: JUSTICE SAMOUR delivered the Opinion of the Court. JUSTICE HOOD, dissenting.

license: Public Domain

text:
    Ryan Matthew CARDMAN, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
    Supreme Court Case No. 17SC541
    Supreme Court of Colorado.
    July 1, 2019 Petition for Rehearing Denied August 19, 2019
    Attorneys for Petitioner: Megan A. Ring, Public Defender, Katherine Brien, Deputy Public Defender, Denver, Colorado
    Attorneys for Respondent: Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney, General, Denver, Colorado
    En Banc
   JUSTICE SAMOUR delivered the Opinion of the Court.

¶1 "[O]urs is an accusatorial and not an inquisitorial system-a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth." Rogers v. Richmond , 365 U.S. 534, 541, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). For this reason, "convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand." Id. at 540.

¶2 Yet Detective Paul Patton coerced Matthew Ryan Cardman into making a confession, and the prosecution then used that confession as evidence against Cardman to convict him of multiple sex offenses. Defense counsel filed a pretrial motion to suppress Cardman's statements but neglected to challenge the voluntariness of those statements. Had counsel advanced a voluntariness claim, this case might not be before us today. But because counsel neglected to do so, the trial court did not rule on it, and a division of the court of appeals declined to review its merits, concluding that Cardman waived it by failing to raise it in the trial court. We disagree with the division and therefore reverse.

¶3 For the reasons articulated in Phillips v. People , 2019 CO 72, 443 P.3d 1016, a companion case we announce today, we hold that the voluntariness claim was forfeited, not waived, and is thus subject to plain error review. Upon conducting such review, we conclude that the court erred in admitting Cardman's statements at trial and that the error rises to the level of plain error requiring reversal. Accordingly, we remand to the court of appeals with instructions to return the case to the trial court for a new trial.

I. Facts and Procedural History

¶4 A.W., a seven-year-old child, lived with her mother, A.B., and Cardman, A.B.'s boyfriend. Although A.B. and Cardman broke up, they continued to live together. Even after the breakup, A.B. routinely left A.W. in Cardman's care while she worked night shifts as a nurse. This arrangement continued until A.B. married another man. During the ensuing years, A.W. complained about chronic nightmares, inability to sleep, and stomachaches. A.W. eventually told her stepfather that Cardman had sexually abused her on several occasions while her mother was at work. Her stepfather then informed A.B., who called the police. Cardman was later arrested.

¶5 As part of his investigation into A.W.'s allegations, Detective Patton conducted an audio-recorded interview of Cardman at the jail. Cardman initially denied the allegations. However, after the detective made certain promises, Cardman incriminated himself. Below are excerpts from the interview reflecting such promises:

DETECTIVE: [After a suspect invokes his right to counsel], [o]ur department policy asks that we wait twenty-four hours before we contact the suspect and give him one last shot to say-hey, this is the information we've uncovered, can you explain some things? There is some gray area, ... and I really just want to make sure that this stuff didn't happen as much as she's talking about. ...
Let's turn your life around right now today. Because we can-if we can provide an explanation to help this go away for you-
CARDMAN: I would love that.
DETECTIVE: Okay, so then let's fix that. Let's fix that. Because right now, it's not going away. ...
[M]aybe you could meet [A.W.] halfway on some of those things, that we can put the icing on the cake, put this in a drawer, have her go heal, have you turned around, get back with your wife, go to church, live your life, and put all of this behind you, right now today.
CARDMAN: I would love that, you have no idea.
DETECTIVE: Then let's do it. ...
We both know where you wanna go in life and with your wife and church and everything. I'm not here to hang you, I'm not here to beat you up today. I'm here to do this [sounds of paper shuffling]. At the end of this sentence, I put this in a drawer. And I can't do that if you tell me that you had sex with this girl fifty, sixty times, I'm concerned. And then I have a different investigation. If there was some inappropriate sexual stuff that happened once or twice, I want an explanation for that so I can do this [sound of paper shuffling] and go home on my Friday, do you understand?
CARDMAN: Yeah well, believe me.
DETECTIVE: I'm trying to paint the picture, man.
CARDMAN: If I can get this all figured out, closed out, dealt with, I can go home tomorrow.
DETECTIVE: Let's do it.
CARDMAN: Believe me, that's what I want to do.
DETECTIVE: And if I can help with any of that here, I'd-you're damn skippy. ...
Because I honestly think if you can provide some sort of corroboration and some answers, maybe even an apology or a quick sorry for whatever it is, and I give that to [A.W.], I think that would go away. ...
What we don't want to hear is that Ryan Cardman wakes up over here every day and lusts for the sexual contact with a kid. And there's fifty, sixty times like what's she's saying. We don't want to hear that.
CARDMAN: No.
DETECTIVE: But what is explainable and what people understand is ... it was an accident, a momentary, one-time lapse and a bad decision occurred. People understand that, okay? What people don't understand is this guy over here who wakes up every day to wait 'til she's alone, 'til you're alone, to do those things. That guy is the one we're worried about. And that's the guy that we try to send to prison and to lock up and that's what I want to eliminate here today. And, Ryan, I don't think you're that guy.

At the end of the interrogation, Cardman confessed to several instances of unlawful sexual contact with A.W.

¶6 The prosecution later charged Cardman with eight offenses related to three incidents of sexual assault. Before trial, Cardman moved to suppress his confession based on his rights to counsel and to remain silent. Cardman argued that: (1) two days before the interview, he invoked his right to counsel and informed the detective that he did not wish to answer questions; (2) the detective nonetheless interviewed him at the jail after a third party allegedly indicated that Cardman had changed his mind and wanted to speak with law enforcement; and (3) he never contacted law enforcement directly or asked anyone to contact law enforcement on his behalf. Following a suppression hearing, the trial court denied Cardman's motion. However, it did so without reviewing the audio-recorded interview because neither party requested its admission into evidence at the hearing. The case proceeded to trial, and a jury returned guilty verdicts on all the charges brought against Cardman. The trial court then imposed an indeterminate prison sentence with a minimum term of twelve years and a maximum term of the rest of Cardman's life.

¶7 On appeal, Cardman challenged the trial court's ruling that Detective Patton had not violated his rights to counsel and to remain silent. But he also raised a two-part voluntariness claim that he had not advanced at the trial court-he asserted that the trial court reversibly erred when it admitted his statements without first determining (1) whether they were voluntarily made and (2) whether he was entitled to specific performance of the detective's promises.

People v. Cardman , 2016 COA 135, ¶ 71, --- P.3d ----, judgment vacated by Cardman v. People , 2017 WL 1369883 (Colo. Apr. 10, 2017). In a split decision, a division of the court of appeals declined to address the merits of the unpreserved voluntariness claim, concluding that Cardman had waived it by failing to raise it in the trial court. Id. at ¶¶ 60-84. In his dissent, Judge Berger reasoned that Cardman merely forfeited the claim, which rendered it reviewable for plain error. Id. at ¶¶ 123-44 (Berger, J., dissenting). We granted Cardman's petition for certiorari, vacated the division's opinion, and ordered a limited remand so the division could reconsider its waiver ruling in light of our recent decision in Reyna-Abarca v. People , 2017 CO 15, 390 P.3d 816. On remand, the same division issued another split decision. People v. Cardman , 2017 COA 87, --- P.3d ----. The majority stood by its previous waiver determination, id. at ¶¶ 20-24, while Judge Berger again asserted that Cardman's unpreserved claim was forfeited, not waived, and therefore subject to plain error review, id. at ¶¶ 80 -100 (Berger, J., dissenting).

¶8 Cardman again petitioned for certiorari review, and we granted his petition.

II. Analysis

¶9 Cardman maintains that the division erred in concluding that he waived his unpreserved claim. The prosecution disagrees and urges us to affirm the division's judgment. For the reasons set forth in Phillips , which relies on People v. Rediger , 2018 CO 32, 416 P.3d 893, we hold that Cardman's voluntariness claim was forfeited, not waived, and is subject to plain error review. Undertaking such review, we conclude that Cardman's statements were involuntary and that the trial court plainly erred in admitting them into evidence. Therefore, we reverse the division's judgment and remand with instructions to return the case to the trial court for a new trial.

A. Cardman Forfeited His Voluntariness Claim

¶10 A waiver requires evidence of an "intentional relinquishment of a known right or privilege." Phillips , ¶ 16 (quoting Rediger , ¶ 39, 416 P.3d at 902 ). "When an intentional relinquishment of a known right is not present, then 'the failure to make the timely assertion of a right' is a forfeiture, not a waiver." Id. at ¶ 17 (quoting Rediger , ¶ 40, 416 P.3d at 902 ). Thus, while waiver requires "intent," forfeiture occurs "through neglect." Id. (quoting United States v. Carrasco-Salazar , 494 F.3d 1270, 1272 (10th Cir. 2007) ).

¶11 Applying our holding in Phillips , see id. at ¶¶ 16-38, we conclude that Cardman did not waive his voluntariness claim. There is no evidence that defense counsel intended to relinquish Cardman's right to challenge the admissibility of the confession, including on voluntariness grounds. The record is barren of any indication that defense counsel considered raising the unpreserved claim before the trial court but then, for strategic or any other reason, discarded the idea. Given that Cardman's counsel clearly (and understandably) wanted the confession excluded from the trial, what benefit could he have obtained from his failure to present an additional ground to contest its admissibility?

None comes to mind. We are equally hard pressed to think of any strategic advantage he could have gained by refraining to raise an argument that should have convinced the trial court to suppress what was "probably the most probative and damaging evidence" that could be admitted against Cardman. See Arizona v. Fulminante , 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (quoting Bruton v. United States , 391 U.S. 123, 139, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (White, J., dissenting)). Inasmuch as defense counsel asked the trial court to suppress Cardman's statements, there is no basis to believe that he decided against raising the voluntariness issue for strategic or other reasons.

¶12 But the People nevertheless argue that Crim. P. 41(g) compels a finding of a waiver here. As we explain in Phillips , we are unpersuaded. See Phillips , ¶¶ 23-37. Rule 41(g) generally requires that a motion to suppress statements "be made and heard before trial," though it permits "the court, in its discretion," to entertain the motion at trial. Thus, unlike its federal counterpart, Fed. R. Crim. P. 12(c)(3), which permits a court to consider any time after trial commences, including on appeal , untimely suppression issues, the scope of Rule 41(g) is limited to a court's ability to consider such issues at trial . "We do not infer from our [rule's] silence regarding post-trial proceedings that [its] drafters intended to treat as 'waived' any untimely suppression issues raised for the first time on appeal." Id. at ¶ 23.

¶13 The People insist, though, that when a statute or rule includes procedural requirements, defense counsel's failure to comply with them must be deemed a waiver because attorneys are presumed to know procedural rules. We are unpersuaded. The People's position is not supported by Rediger and would lead to absurd results.

¶14 The waiver/forfeiture distinction we drew in Rediger did not turn on whether defense counsel was required to raise the unpreserved appellate claim by a procedural rule or by substantive law. Nowhere in Rediger did we discuss the difference between procedural and substantive legal requirements.

¶15 Moreover, distinguishing between procedural rules and substantive law to determine whether a claim is waived or forfeited makes little sense. For example, as relevant here, Rule 41(g) sets forth the procedures for raising suppression issues related to a statement. But no one would dispute that, since a criminal defense attorney has an ethical obligation to zealously represent his client, he is required to raise such issues before trial when doing so is warranted by Fifth Amendment jurisprudence. In other words, if Rule 41(g) didn't exist, defense counsel would still have a duty to advance appropriate Fifth Amendment arguments to attempt to exclude certain statements from trial. Yet, the People would have us hold that a defense attorney's failure to comply with a procedural rule always amounts to a waiver, but a defense attorney's failure to comply with substantive law can be a forfeiture when such failure is not an intentional relinquishment of a known right. The People forget that attorneys are also presumed to know substantive law. As in Phillips , we see no basis to create a Rule 41(g) exception to Rediger .

¶16 This is not to say that there aren't compelling reasons for the procedures outlined in Rule 41(g). Nor should we be understood as minimizing the importance of compliance with that rule. But the question we confront today is neither whether the rule should be in place nor whether requiring that suppression contentions be timely raised before trial is truly necessary. The issue we address is whether an appellate court should be allowed to review for plain error when defense counsel negligently fails to raise a suppression assertion at the trial court. Consistent with Rediger , we answer yes.

¶17 We acknowledge that our waiver determination in Hinojos-Mendoza v. People , 169 P.3d 662 (Colo. 2007), does not align with this conclusion. However, as we observe in Phillips , Hinojos-Mendoza has been supplanted by Rediger . See Phillips , ¶¶ 30, 32-33.

¶18 Adhering to Rediger , we conclude that the failure by Cardman's counsel to raise the voluntariness claim in the trial court, without more, is not sufficient to allow us to infer that he intended to waive it. The mere failure to raise an issue neither amounts to "the type of unequivocal act indicative of a waiver" nor constitutes "the type of conduct that clearly manifest[s] any intent ... to relinquish [the] claim." Dep't of Health v. Donahue , 690 P.2d 243, 247 (Colo. 1984). In Rediger , we declined to infer an intentional relinquishment of a known right from defense counsel's acquiescence to an erroneous jury instruction tendered by the prosecution. Rediger , ¶ 41, 416 P.3d at 902. Instead, we indulged "every reasonable presumption against waiver." Id. at ¶ 46, 416 P.3d at 903 (quoting People v. Curtis , 681 P.2d 504, 514 (Colo. 1984) ). We do the same here and hold that Cardman forfeited his voluntariness claim. As such, it is subject to plain error review, which we undertake next.

B. The Trial Court Committed Plain Error

¶19 Under Crim. P. 52(b), plain error occurs when there is (1) an error, (2) that is obvious, and (3) that so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. See Hagos v. People , 2012 CO 63, ¶ 14, 288 P.3d 116, 120. We consider each of these three requirements in turn.

1. There Was an Error

¶20 Cardman frames the error question as follows: Whether the trial court erred in admitting his statements into evidence without first determining whether they were voluntary . He thus maintains that if we conclude that the trial court erred, we must remand with instructions to have the case returned to the trial court for findings on the voluntariness issue. We do not believe that remanding for further development of the record and further findings is appropriate in this situation. Doing so would improperly place Cardman in the same position as if he had timely raised the unpreserved claim, would strip the preservation requirement of any meaning, and would dilute the rigorous plain error standard of review governing forfeited issues. Hence, the question we must answer instead is this: Whether the trial court erred in admitting Cardman's statements into evidence because they were involuntarily made .

¶21 A defendant's statements may be admitted into evidence only if they are voluntary. People v. Freeman , 668 P.2d 1371, 1378 (Colo. 1983). A statement is voluntary when "it is the product of an individual's 'free and rational choice.' " People v. Taylor , 41 P.3d 681, 694 (Colo. 2002) (quoting People v. Mendoza-Rodriguez , 790 P.2d 810, 816 (Colo. 1990) ). Courts recognize that "[p]sychological as well as physical pressures may be brought to bear on a suspect to induce his confession." Freeman , 668 P.2d at 1379. Consequently, either psychological or physical coercion may render a defendant's statements involuntary under some circumstances. Taylor , 41 P.3d at 694. That includes a statement "extracted by any sort of threats or violence," "obtained by any direct or implied promises, however slight ," or elicited "by the exertion of any improper influence." Mendoza-Rodriguez , 790 P.2d at 816 (emphasis added) (quoting Brady v. United States , 397 U.S. 742, 753, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) ).

¶22 In determining whether a defendant's statements are voluntary, "we consider the totality of the circumstances surrounding the statements." People In Interest of Z.T.T. , 2017 CO 48, ¶ 12, 394 P.3d 700, 703. We pay particular attention to " 'the significant details surrounding and inhering' in the questioning." Id. (quoting People v. McIntyre , 2014 CO 39, ¶ 16, 325 P.3d 583, 587 ). A defendant's statements are involuntary if the interrogating officer's behavior "was 'coercive so as to overbear the defendant's will in making the statements.' " Id. (quoting McIntyre , ¶ 16, 325 P.3d at 587 ); see also Mendoza-Rodriguez , 790 P.2d at 816 ("The question is whether the individual's will has been overborne."). It follows that, while coercive police conduct is necessary to find involuntariness, see Taylor , 41 P.3d at 694, coercion does not automatically nullify the voluntariness of a defendant's statements and render them inadmissible, see Z.T.T. , ¶ 12, 394 P.3d at 703. Rather, suppression is justified when "the coercive police conduct ... played a significant role in inducing the statements." People v. Zadran , 2013 COA 69M, ¶ 12, 314 P.3d 830, 834 ; accord McIntyre , ¶ 16, 325 P.3d at 587.

¶23 To evaluate voluntariness, we consider "both the defendant's ability to resist coercive pressures and the nature of the police conduct." Z.T.T. , ¶ 13, 394 P.3d at 703 (quoting People v. Ramadon , 2013 CO 68, ¶ 20, 314 P.3d 836, 842 ). We have formulated a non-exhaustive list of factors to aid us in our analysis:

1. whether the defendant was in custody;
2. whether the defendant was free to leave;
3. whether the defendant was aware of the situation;
4. whether the police read Miranda rights to the defendant;
5. whether the defendant understood and waived Miranda rights;
6. whether the defendant had an opportunity to confer with counsel or anyone else prior to or during the interrogation;
7. whether the statement was made during the interrogation or volunteered later;
8. whether the police threatened [the] defendant or promised anything directly or impliedly;
9. the method [or style] of the interrogation;
10. the defendant's mental and physical condition just prior to the interrogation;
11. the length of the interrogation;
12. the location of the interrogation; and
13. the physical conditions of the location where the interrogation occurred.

Id. (alterations in original) (quoting McIntyre , ¶ 17, 325 P.3d at 587 ).

¶24 Here, eight factors appear to support a finding of involuntariness: Cardman was in custody at the time of the interrogation (factor 1); he was not free to leave because he was in custody (factor 2); he did not have an opportunity to confer with counsel beforehand (factor 6); he made incriminating statements during the interrogation (factor 7); the detective made promises to him to induce his incriminating statements (factor 8); the method of the interrogation was coercive given the detective's repeated promises (factor 9); and the interrogation took place at the jail (factors 12 and 13).

¶25 On the other side of the ledger, only four factors appear to weigh in favor of voluntariness: although Cardman may have had little more than an inkling about the detective's investigation before the meeting at the jail, shortly after sitting down for his interview, he became aware that A.W. had made sexual allegations against him (factor 3); the detective read him his Miranda rights (factor 4); he said he understood those rights and then waived them (factor 5); and his mental and physical condition just before the interrogation seemed normal (factor 10).

¶26 And one factor appears to be neutral: The interview lasted approximately one hour (factor 11).

¶27 But the analysis is not quantitative-we do not simply count the number of factors on each side of the equation and see which side has more. The reason is twofold: We do not accord the same weight to each of the thirteen factors, and how much weight we accord each factor in a particular case depends on the circumstances involved. This case illustrates the point. As we set forth in more detail next, given the detective's repeated promises during the interrogation, factors 8 and 9 are dispositive. Hence, even if all the other factors favored a finding of voluntariness, we would still conclude that Cardman's statements were involuntarily made.

¶28 The interview was coercive and disturbing. Cardman initially denied doing anything of a sexual nature with A.W. The detective told Cardman that he did not believe him. But Cardman remained steadfast in his denial. As the interrogation progressed, though, the detective conveyed to Cardman that the case would go away and would not proceed if Cardman met A.W. halfway and apologized to her. When the detective said, "if we can provide an explanation to help this go away for you," Cardman interrupted him: "I would love that." And the detective responded with encouragement: "Okay, so then let's fix that. Let's fix that. Because right now, it's not going away." The detective later added that he could put the case "in a drawer," have A.W. "go heal," have Cardman "turned around, get back with [his] life, go to church, live [his] life ... and put all of this behind [him], right now today." Cardman replied: "I would love that, you have no idea." And the detective again encouraged him: "Then let's do it." Even then Cardman did not admit any of A.W.'s allegations, though he acknowledged an incident in which she sat on his lap, an incident which she might have misconstrued as inappropriate touching, a few instances in which she walked in on him masturbating, and a few instances in which she walked in on him and her mother having sex.

¶29 The detective kept pushing Cardman, however, reminding him that he knew where Cardman wanted to go in life with his wife and his church. He then told Cardman that he could put the case "in a drawer" if Cardman admitted to some "inappropriate sexual stuff." According to the detective, if there was inappropriate sexual conduct with A.W. that happened just once or twice, as opposed to having had sex with her fifty or sixty times, he wanted an explanation so he could set the case aside and "go home on [his] Friday." After the detective asked Cardman if he understood what he was telling him, he added that he was "trying to paint the picture" for him. Cardman then appeared to seek confirmation that his understanding of the detective's promises was accurate: "If I can get this all figured out, closed out, dealt with, I can go home tomorrow." And the detective responded: "Let's do it."

¶30 Only then did Cardman confess to inappropriate sexual conduct with A.W. Specifically, Cardman admitted that: (1) he had gotten an erection three times while A.W. sat on his lap and had ejaculated two of those times; (2) he had touched A.W. around the crotch area, become aroused, and ejaculated; and (3) when A.W. had sat on his lap on a computer chair with her legs straddling, the rubbing motion had caused him to get an erection.

¶31 At the end of the interview, the detective spoke as follows: "I think I can put a period on this and put this away. I hope you can too. ... We move forward from right now today. And I think you do that with your best spirit in mind, your wife's best spirit in mind, your kids' best spirit in mind." He then asked Cardman to write a brief note apologizing to A.W. so that she could get some closure and put this behind her. Cardman did so and apologized to A.W. in writing, saying "I apologize for the instances of sexual content [sic] between you and I. I never meant for them to happen and wish I could take it all back."

¶32 This is precisely the type of interview that flies in the face of one of the bedrock principles of our criminal jurisprudence: The State may not prove a charge by obtaining a confession from the accused through coercion. Rogers , 365 U.S. at 540-41, 81 S.Ct. 735. Detective Patton elicited incriminating statements from Cardman by repeatedly promising that, if he met A.W. halfway, apologized to her, and admitted to some inappropriate sexual conduct with her that was not as egregious as sexually assaulting her fifty to sixty times, he would not be prosecuted for it. Cardman then admitted to inappropriate sexual conduct with A.W. on a few occasions, and the State later used those admissions to obtain a conviction against him. Because Cardman's will was overborne by police coercion, we conclude that his statements were involuntarily made. Therefore, it was error for the court to admit them into evidence at trial.

2. The Error Was Obvious

¶33 Having found there was an error, we next consider the second prong of our plain error analysis. We rule that the error was obvious.

¶34 In general, to be plain, an error must "be so obvious" at the time it is made "that a trial judge should be able to avoid it without the benefit of an objection." Scott v. People , 2017 CO 16, ¶ 16, 390 P.3d 832, 835. "For an error to be this obvious, the action challenged on appeal ordinarily 'must contravene (1) a clear statutory command; (2) a well-settled legal principle; or (3) Colorado case law.' " Id. (quoting People v. Pollard , 2013 COA 31M, ¶ 40, 307 P.3d 1124, 1133 ). An error may be obvious when the issue on appeal has been decided by our court or a division of the court of appeals. People v. Ujaama , 2012 COA 36, ¶ 42, 302 P.3d 296, 304-05.

¶35 The admission of Cardman's statements at trial contravened both well-settled legal principles and Colorado case law. Therefore, the error was obvious and the trial court should have been able to avoid it without the benefit of an objection.

¶36 In fairness to the court, we recognize that the first opportunity it had to avoid the error was during trial because neither party sought to introduce the audio-recorded interrogation at the pretrial hearing held on Cardman's suppression motion. As a result, avoiding the error may well have required the declaration of a mistrial. But we consider Cardman's case an anomaly in which a confluence of factors created the proverbial perfect storm. For five reasons, we anticipate that today's opinion will not lead to more mistrials. First, the vast majority of defense attorneys would have spotted the voluntariness issue in this case and would have raised it in a timely fashion. Second, we perceive little risk of sandbagging. See Phillips , ¶ 29. Third, the prosecution is always free to make a record about any glaring suppression issue to document that defense counsel is aware of it and is choosing not to raise it. Fourth, a mistrial would be required only when necessary to avoid obvious error. And finally, recordings of interrogations containing incriminating statements are typically provided to the trial court before or during pretrial suppression hearings.

¶37 We do not anticipate that this opinion will burden our colleagues on the court of appeals either. Defense attorneys have every incentive to raise all meritorious suppression issues before trial. Id . Failure to do so risks, among other things, an inadequate appellate record that cannot establish plain error. Of course, it hardly bears stating that in the suppression context, a well-developed factual record is usually pivotal.

¶38 But, regardless of the consequences, our task at this juncture of the analysis is to determine whether the error in admitting Cardman's statements at trial was obvious. Because we conclude that it was and that the trial court should have been able to avoid it without an objection, we proceed to consider the last requirement of plain error analysis.

3. The Error Undermined the Fundamental Fairness of the Trial

¶39 The question still remains whether the trial court's obvious error "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, 288 P.3d at 120 (quoting People v. Miller , 113 P.3d 743, 750 (Colo. 2005) ). In other words, we must "determine whether a reasonable possibility exists that [any error] ... contributed to [the] conviction." People v. Lozano-Ruiz , 2018 CO 86, ¶ 5, 429 P.3d 577, 578.

¶40 The trial court's obvious error permitted the jury to consider Cardman's incriminating statements. Because this was largely a he-said-she-said case, Cardman's confession was by far the strongest evidence against him. Under all the circumstances present, we have little difficulty concluding that the admission of the statements seriously undermined the fundamental fairness and integrity of the trial. In our view, there is a reasonable possibility that the trial court's error in admitting Cardman's confession contributed to his conviction. Were we to find no plain error and to leave the judgment of conviction intact, it would lead any objective observer to conclude that an injustice was perpetrated on Cardman. This we are unwilling to allow. "[A]bove all, it is the appellate court's responsibility to avoid a miscarriage of justice for a defendant even when defense counsel fails to object to serious errors at trial." People v. Nardine , 2016 COA 85, ¶ 64, 409 P.3d 441, 453-54. And "[e]nsuring fundamental fairness in trial is the beacon of plain error review." Id.

¶41 In sum, we determine that the trial court erred in admitting Cardman's statements and that the error rises to the level of plain error. Therefore, we cannot allow Cardman's judgment of conviction to stand.

III. Conclusion

¶42 In today's decision, and in Phillips , we do no more than apply our holding in Rediger . We recognize that some would have us invoke the drastic measure of waiver, which would then force Cardman to take his chances with a Crim. P. 35(c) ineffective-assistance-of-counsel claim. In our view, the more just path, and the one most faithful to the law, is the one we take.

¶43 We conclude that Cardman did not waive his voluntariness claim by failing to raise it in the trial court. Instead, we hold that the claim was forfeited and is subject to plain error review. Because we determine that the trial court plainly erred in admitting Cardman's statements, we reverse the division's judgment and remand with instructions to return the case to the trial court for a new trial.

JUSTICE HOOD dissents, and CHIEF JUSTICE COATS and JUSTICE MÁRQUEZ join in the dissent.

JUSTICE HOOD, dissenting.

¶44 The adage about bad facts sometimes making bad law seems to hold true today. By extending plain error review to unpreserved suppression claims, the majority essentially nullifies a long-standing and controlling rule of criminal procedure. Moreover, in doing so, it undermines the policy objectives of the rule and places an unreasonable burden on trial courts and the court of appeals. Therefore, I respectfully dissent.

I. Analysis

A. Crim. P. 41(g) Requires Motions Like the One Here to Be Filed Before Trial

¶45 Since 1970, criminal defendants in Colorado have been required by rule to challenge involuntary confessions or admissions before trial:

A defendant aggrieved by an alleged involuntary confession or admission made by him, may make a motion under this Rule to suppress said confession or admission. The motion shall be made and heard before trial unless opportunity therefor did not exist or defendant was not aware of the grounds for the motion ....

Crim. P. 41(g) (emphasis added). The trial court "may" address such a motion at trial, but its decision in that respect is purely discretionary. See id.

¶46 For many years, we rejected efforts by criminal defendants to raise suppression issues on appeal when the issues were not properly raised before the trial court. See, e.g. , People v. L.A. , 199 Colo. 390, 609 P.2d 116, 118-19 (1980) (remanding for further proceedings to determine whether a juvenile-defendant's statements were voluntary because, though the issue was raised in the motion to suppress, the trial court did not make findings on this question during the suppression hearing); People v. Cobb , 690 P.2d 848, 853 (Colo. 1984) (refusing to consider the merits of a defendant's claim that his Fifth Amendment rights were violated because the argument "was not raised in [the] motion to suppress the evidence, nor was it argued before the trial court");

People v. Gouker , 665 P.2d 113, 117-18 (Colo. 1983) (rejecting the defendant's argument that he was arrested pursuant to an invalid warrant because he failed to contest its validity at the suppression hearing). While these cases do not rely explicitly on Crim. P. 41, they demonstrate how entrenched this form of procedural default is.

B. Crim. P. 41 Serves Many Important Policy Objectives

¶47 Presumably, this rule, and caselaw to the same effect, has endured because there are so many compelling reasons for it. See 6 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.1(a) (5th ed. 2014). ("[T]here are many valid reasons underlying the practice of requiring pretrial motions, which doubtless explains why so many jurisdictions now subscribe to that approach."). Requiring pretrial litigation of suppression issues helps to:

• prevent "the waste of prosecutorial and judicial resources occasioned by [trial] preparation," United States v. Mauro , 507 F.2d 802, 806 (2d Cir. 1974) ; accord LaFave, supra ;
• permit the defendant, when suppression is denied, to "plead guilty and gain whatever concessions might be obtained by so pleading without causing the commencement of a trial" or change trial strategy, LaFave, supra ;
• "permit the government to change the theory of its case, to develop or place greater reliance upon untainted evidence or otherwise to modify its trial strategy [in the event of an adverse ruling]," United States v. Sisca , 503 F.2d 1337, 1348 (2d Cir. 1974) ;
• allow the prosecution to pursue an interlocutory appeal of an adverse pretrial suppression ruling before jeopardy attaches, People v. Traubert , 199 Colo. 322, 608 P.2d 342, 348 (1980) ("Since the prosecution is precluded from placing a defendant in double jeopardy after a verdict has been rendered, its only meaningful avenue of appeal must be found in a pre-judgment proceeding.");
• "avoid interruptions of a trial in progress with auxiliary inquiries" and ensure the jury remains focused on the issues presented at trial, United States v. Mauro , 507 F.2d 802, 806 (2d Cir. 1974) ;
• prevent "serious personal inconvenience to jurors and witnesses which would result from interruptions and delay once the jury had been selected and the trial had commenced," id. ; and
• "avoid the necessity of declaring a mistrial because the jury has been exposed to unconstitutional evidence, with resulting repetitive litiga[t]ion," State v. Lawrence , 260 La. 169, 255 So. 2d 729 (1971).

¶48 Similarly, we insist that motions to suppress "should state with reasonable specificity the legal grounds upon which the motions are based." People v. Jansen , 713 P.2d 907, 912 n.8 (Colo. 1986). We require such specificity to ensure "the prosecution [is] on notice of the contentions it must be prepared to meet at a suppression hearing and to inform the court of the issues to be decided." Id. After all, when considering a motion to suppress based on the alleged involuntariness of the confession, the trial court "must make sufficiently clear and detailed findings of fact and conclusions of law on the record to permit meaningful appellate review." People v. McIntyre , 789 P.2d 1108, 1110 (Colo. 1990). Without factual determinations from the trial court, "appellate review may be impossible, requiring remand for further findings." Id.

¶49 In sum, Crim. P. 41(g) serves an essential role-it ensures that the parties and trial courts do not waste time and resources pursuing claims that could be resolved in pretrial proceedings.

C. There Is No Constitutional Right to a Hearing on the Voluntariness of a Confession, in the Absence of Objection

¶50 What, then, is the legal basis for deviating from the rule here? It's certainly not the existence of an applicable federal constitutional right. For there is none. See Wainwright v. Sykes , 433 U.S. 72, 86, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (rejecting the notion that "a defendant has a right under Jackson v. Denno to a hearing as to the voluntariness of a confession, even though the defendant does not object to its admission" (citation omitted)). And we have never recognized such a right under any source of Colorado law.

D. The Majority's Reliance on Rediger Is Misplaced

¶51 The majority relies on our recent decision in People v. Rediger , 2018 CO 32, 416 P.3d 893, as a broad game changer regarding plain error review. See maj. op. ¶¶ 9, 17; see also Phillips v. People , 2019 CO 72, ¶¶ 21-22, 443 P.3d 1016. And that it was. But, Rediger did not address whether waiver is implied when a defendant fails to lodge an objection required by rule or statute. See Rediger , ¶¶ 39-47, 416 P.3d at 902-903. Therefore, Rediger is plainly distinguishable.

¶52 In Rediger , the defendant failed to make a contemporaneous objection to an allegedly erroneous jury instruction. See id. at ¶¶ 9-10, 12, 416 P.3d at 898. Defense counsel additionally stated that the "defense [was] satisfied" with the instructions. Id. at ¶ 10, 416 P.3d at 898. Yet, we still concluded that, based on the record, there was no evidence that the defendant "either express[ly] or implied[ly] ... intended to relinquish his right to be tried in conformity with the charges set forth in his charging document." Id. at ¶ 42, 416 P.3d at 902. There simply wasn't enough evidence in the record to establish such an intent, and accordingly, because "we must indulge 'every reasonable presumption against waiver,' " we concluded that the defendant had forfeited his claim, and had not waived it. Id. at ¶¶ 46-47, 416 P.3d at 903 (emphasis added) (quoting People v. Curtis , 681 P.2d 504, 514 (Colo. 1984) ).

¶53 Conspicuously absent in Rediger , however, was a rule like Crim. P. 41(g), which generally mandates that a defendant file a motion to suppress an involuntary statement before trial.

E. Hinojos-Mendoza Should Control

¶54 We saw this type of problem only a dozen years ago in Hinojos-Mendoza v. People , 169 P.3d 662, 665, 670 (Colo. 2007), when we found waiver of a defendant's confrontation right based on defense counsel's failure to file a statutorily required motion challenging the use of certain evidence. In Hinojos-Mendoza , the defendant was charged with intent to distribute cocaine. Id. at 664. A lab technician tested the recovered substances and wrote a report identifying the substance as cocaine. Id. At trial, the People introduced the lab report without calling the technician as a witness. Id. The defendant objected on hearsay grounds. Id. The trial court ruled against the defendant because a statute, section 16-3-309(5), C.R.S. (2006), authorized the admission of the report without the responsible technician's testimony and set out pretrial procedures a defendant would have to follow to question the technician at trial. Hinojos-Mendoza , 169 P.3d at 664-65. In response to questioning from the court, defense counsel admitted that "he had not requested the lab technician's presence because he was unaware of the statute." Id. at 664. On appeal, the defendant argued the admission of the lab report without accompanying testimony from the lab technician violated his Sixth Amendment confrontation rights. Id. at 665.

¶55 We noted that "[w]hether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake." Id. at 669 (quoting United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ). Rights that are personal to the defendant, such as the right to counsel, the right to testify, the right to trial by jury, are "sufficiently personal and fundamental as to require a voluntary, knowing, and intentional waiver by the defendant himself." Id. (citing Curtis , 681 P.2d at 511 ). But, whether to waive other rights, including the right to confrontation, are strategic decisions that fall to defense counsel to make. See id. Thus, we concluded that defense counsel could waive the defendant's right to confront the lab technician by not complying with the procedural requirements set out in the relevant statute. Id. at 670. And because "we presume that attorneys know the applicable rules of procedure," we reasoned that "we can infer from the failure to comply with the procedural requirements that the attorney made a decision not to exercise the right at issue." Id.

¶56 So, where a statute or rule sets forth procedural requirements to challenge evidence with which counsel fails to comply, such failure constitutes an implied waiver of the opportunity to challenge that evidence. See id. Counsel is presumed to know the applicable rules of procedure, and a failure to adhere to those rules creates a basis to infer "that the attorney made a decision not to exercise that right at issue." Id. Contrary to the majority's conclusion, Rediger didn't "supplant[ ]" this analysis. See maj. op. ¶ 17; see also Phillips , ¶ 30. It didn't even address the situation before us now.

F. The Majority's Decision Places an Unreasonable Burden on Judges

¶57 As the majority below observed, our holding today imposes an unreasonable burden on the trial courts:

[T]o require the trial court to hold a hearing on the voluntariness of a defendant's statements where the issue becomes apparent during trial would be overly burdensome and inefficient. Such an obligation could require a trial court in the middle of trial to sua sponte (1) order a new suppression hearing on the issue of voluntariness; (2) declare a mistrial; (3) convene a new jury; and (4) begin a new trial (even where the confession may have been allowed).

People v. Cardman , 2017 COA 87, ¶ 31, --- P.3d ---- ; see also Miller , 814 S.E.2d at 84-85 (outlining potential burdens for the prosecution if plain error review is used in reviewing suppression claims raised for the first time on appeal).

¶58 The systemic implications don't end with the trial courts. Divisions of the court of appeals must now scour the record in far more cases for plain error, even when defense counsel fails to comply with Crim. P. 41(g). All this, when we already have another long-standing rule that can address Cardman's primary concern without so much disruption to our criminal justice system.

G. Cardman's Remedy Is Crim. P. 35(c)

¶59 Rule 35(c) is the proper mechanism for addressing what lies at the heart of Cardman's claim-whether he received ineffective assistance from his trial counsel. See Cardman , ¶¶ 61-63 (Bernard, J., concurring) ("[F]iguring out why defense counsel did not file a motion to suppress is a foundational question ...."). Postconviction proceedings are best suited to handle "situations in which facts outside the record [are] critical" to resolving a defendant's claims. See Moore v. People , 2014 CO 8, ¶ 14, 318 P.3d 511, 517 ; cf. People v. Kirk , 221 P.3d 63, 65 (Colo. App. 2009) ("We are not authorized to make this factual finding in the first instance, and this is not a case in which the record supports but one inference." (citation omitted)). What's missing from the record here is an explanation of why Cardman's defense counsel failed to challenge the voluntariness of his statements in his motion to suppress-was it a strategic choice or an oversight?

¶60 Furthermore, analyzing claims such as Cardman's through an ineffective assistance of counsel lens rather than plain error could prove more advantageous to defendants. "[T]he error in a claim of ineffective assistance of counsel must impair the reliability of the judgment of conviction to a lesser degree than a plain error in order to warrant reversal of the conviction." Hagos v. People , 2012 CO 63, ¶ 19, 288 P.3d 116, 120-21. "Plain error review allows the opportunity to reverse convictions ... presenting particularly egregious errors, but reversals must be rare to maintain adequate motivation among trial participants to seek a fair and accurate trial the first time." Id. at ¶ 23, 288 P.3d at 121-22. And if the harm suffered by Cardman was so great as to satisfy plain error, then it would certainly satisfy the prejudice prong of the Strickland standard for ineffective assistance of counsel. See id. at ¶ 19, 288 P.3d at 121-22 ("Plain error casts serious doubt on the judgment of conviction. Deficient performance of counsel, on the other hand, undermines confidence in the judgment of conviction.").

II. Conclusion

¶61 Cardman waived the challenge he seeks to make here. The majority's contrary conclusion is at odds with Crim. P. 41(g) and our decision in Hinojos-Mendoza . The defendant's potential remedy for counsel's failure to comply with the requirements of Crim. P. 41(g) is found in Crim. P. 35(c). By making factual findings regarding the detective's behavior and decisions by defense counsel, the majority usurps the role of the trial courts.

¶62 For all these reasons, I respectfully dissent.

I am authorized to state that CHIEF JUSTICE COATS and JUSTICE MÁRQUEZ join this dissent.

      The audio recording is difficult to understand at times, and there is no transcript of it. We have done our best to accurately document the quoted excerpts.

      In Reyna-Abarca , we held that unpreserved double jeopardy claims can be raised for the first time on appeal and are subject to plain error review.¶ 2, 390 P.3d at 817-18.

      We granted certiorari to review the following issue:
      Whether the district court violated the petitioner's constitutional right to due process and reversibly erred by admitting statements the petitioner made to a detective, without first determining whether the statements were voluntary and whether the petitioner was entitled to specific performance of direct and/or implied promises made to him by the detective during the interrogation.

      We did not announce Rediger until after the division issued its opinion following our remand.

      We resolve the second part of Cardman's voluntariness claim with little difficulty. To qualify for the remedy of specific performance of promises made by an officer to a defendant, there must be "no other remedy available to the court that could approximate substantial justice under the circumstances of the case." People v. Manning , 672 P.2d 499, 512 (Colo. 1983). Because we conclude that a new trial without Cardman's statements is an appropriate remedy that would ensure substantial justice, he is not entitled to specific performance of the detective's promises.

      We should not be misunderstood as holding that an attorney's failure to file a suppression motion or to include an argument in a suppression motion will always be deemed a forfeiture. If there is evidence in the record that defense counsel made a conscious decision to forego raising a claim for strategic or other reasons, we will not hesitate to find an implied waiver. After all, we recognize that in some situations defense counsel will refrain from seeking the suppression of an article of evidence for strategic or other reasons.

      We understand that it is the prosecution's burden to prove by a preponderance of the evidence that Cardman's statements were voluntarily made, see Mendoza-Rodriguez , 790 P.2d at 816, and that the prosecution did not have an opportunity to attempt to meet its burden because Cardman did not raise the voluntariness issue in the trial court. But here, our conclusion is predicated on the repeated promises made by the detective to lure Cardman into making incriminating statements, and we have access to the audio recording of the interview.

      Wainright analyzed Florida's rule, which is almost identical to Colorado's Crim. P. 41(g). 433 U.S. at 76 & n.5, 97 S.Ct. 2497. As relevant here, Florida Rule Crim. Proc. 3.190(i)(2) sets forth:
      The motion to suppress [a confession or admission illegally obtained] shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion or an appropriate objection at the trial.

      Moreover, the limited discussion of implied waiver in Rediger is dicta because implied waiver was not at issue there.

      And were we to abide by our existing precedent-and hold that failure to comply with the requirements of Crim. P. 41(g) constitutes a waiver, rather than a forfeiture-we would not be alone. See, e.g. , Hernandez v. State , 294 Ga. 903, 757 S.E.2d 109, 110-11 (2014) (holding that a defendant's failure to file a pretrial motion to suppress, as required by statute, resulted in a failure to preserve a claim for appellate review); State v. Miller , 814 S.E.2d 81, 83-86 (N.C. 2018) (holding that plain error review was improper when the defendant failed to timely file a motion to suppress as required by statute, and, thus, the defendant "completely waived appellate review" of his Fourth Amendment claims); Rodriguez v. State , 435 P.3d 399, 408-09 (Wy. 2019) (concluding that failure to file pretrial motions to suppress, as required by Wyoming's procedural rules, without good cause for the failure can constitute waiver).

      Crim. P. 35(c) allows defendants to begin the postconviction review process without going through the direct appeal process:
      Notwithstanding the fact that no review of a conviction of crime was sought by appeal within the time prescribed therefor, or that a judgment of conviction was affirmed upon appeal, every person convicted of a crime is entitled as a matter of right to make application for postconviction review upon the grounds hereinafter set forth. ...
      Therefore, if a speedy remedy is the concern, one at least as speedy as direct appeal remains available. And though there is no Sixth Amendment right to court-appointed counsel for indigent defendants seeking postconviction relief, see Duran v. Price , 868 P.2d 375, 379 (Colo. 1994), district courts have discretion to appoint counsel in Rule 35(c) motions, see Murphy v. People , 863 P.2d 301, 304 n.9.


text:
    Robert GRINPAS and Esther Grinpas, Plaintiffs-Appellees/Cross-Appellees v. KAPAA 382, LLC, A Hawaii Limited Liability Company, Defendant/Cross-Appellee; Kulana Partners, LLC, A Hawaii Limited Liability Company, Defendant/Third-Party Plaintiff-Appellee/Cross-Appellant; William R. Hancock, Defendant-Appellant/Cross-Appellee; Does 1-10 and Kulana Partners, LLC, Defendant/Third-Party Plaintiff/Cross-Appellant v. William R. Hancock, Trustee of Hancock and Co., Inc. Profit Sharing Trust under trust instrument April 3, 1993, Third-Party Defendant/Appellant/Cross-Appellee
    NO. CAAP-14-0000870
    Intermediate Court of Appeals of Hawai'i.
    August 7, 2019
    MEMORANDUM OPINION
    Affirmed.


text:
    WINDWARD CHRISTIAN CHURCH, previously known as First Baptist Church-Windward, and Alan Brown, Plaintiffs-Appellants, v. ONE LOVE MINISTRIES, Bob Hamilton, David Tipton, KALO TV, Inc., Defendants-Appellees, and John and Mary Does 1-10, Doe Corporations, Partnerships or Other Entities 1-10, Defendants
    NO. CAAP-15-0000949
    Intermediate Court of Appeals of Hawai'i.
    August 5, 2019.
    MEMORANDUM OPINION
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. William BARNES, Defendant-Appellant
    NO. CAAP-16-0000541
    Intermediate Court of Appeals of Hawai'i.
    August 2, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Daniel A. GONZALEZ, Defendant-Appellant
    NO. CAAP-18-0000616
    Intermediate Court of Appeals of Hawai'i.
    August 12, 2019.
    MEMORANDUM OPINION
    Affirm.


text:
    FIRST HAWAIIAN BANK, Plaintiff-Appellee, v. ASSOCIATION OF APARTMENT OWNERS OF SUN RISE, INC., BY its BOARD OF DIRECTORS, Defendant-Appellant, and Wade Allen Hamlin, Defendant-Appellee, and John Does 1-10, Jane Does 1-10, Doe Partnerships 1-10, Doe Corporations 1-10, Doe Entities 1-10, and Doe Governmental UnitS 1-10, Defendants
    NO. CAAP-16-0000430
    Intermediate Court of Appeals of Hawai'i.
    August 9, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    Kenneth M. SKAHAN, Claimant-Appellant, v. STUTTS CONSTRUCTION COMPANY, INC., Employer-Appellee, and First Insurance Company of Hawaii, Ltd., Insurance Carrier-Appellee (Case No. AB 2014-043 (WH); (9-02-01024) (M)) and Kenneth M. Skahan, Claimant-Appellant, v. Stutts Construction Company, Inc., Employer-Appellee, and First Insurance Company of Hawaii, Ltd., Insurance Carrier-Appellee (Case No. AB 2014-042 (WH); (9-13-54105) (M))
    NO. CAAP-16-0000537 NO. CAAP-16-0000538
    Intermediate Court of Appeals of Hawai'i.
    August 9, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.