Issue: If a criminal law is found unconstitutional after trial, can the issue be raised for the first time on appeal?
Facts: Defendant was convicted of various offenses, including the “criminal gang offenses enhancement statute.” Defendant did not challenge the constitutionality of the statute at trial, but it was ruled unconstitutional in another case sentencing. Defendant challenged the law on appeal.
Appellate Decision: The intermediate court rejected Defendant’s challenge as waived, because he raised it for the first time on appeal. The court also held that Defendant was not entitled to plain error review: the trial court did not breach a “clear and unequivocal rule of law” because the law was not found unconstitutional until after the trial.
Judge McMullen dissented, writing that new rules of constitutional law are retroactively applied to all cases still pending on direct review.
Review Granted: July 20, 2017. The Court’s order granting review stated: “In addition to the issue raised in the application, the Court is particularly interested in briefing and argument on the effect, if any, of Henderson v. United States, 568 U.S. 266 (2013), on the plain error analysis in this case.”
Prediction: Ben thinks the Supreme Court is likely to reverse and rule for the Defendant in light of Judge McMullen’s reasoning, the clear interests of justice, and the Supreme Court’s reference to the Henderson case which held “plain error” exists so long as the error is plain at the time of appellate review.