The general rule is that an appellate court does not consider an issue unless an objection was made in the trial court. The one exception to the rule is where there is plain error. Plain error is defined as:

(1) there is “an error,” (2) the error is “plain,” . . .(3) the error “affect[s] substantial rights.” . . . [and](4) . . . “the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.

Last week the Supreme Court faced a contradiction between two rules over the application of the plain error rule. The question is must the error be “plain” at the time of the trial court decision or can it be “plain” at the time of the appellate court decision. One rule is that the failure to object to an error waives the right to appeal the error. A second, and somewhat contrary rule, is that appellate courts decide matters as of the date of the ruling on appeal.

The trial court sentenced Armarcion Henderson to an above guidelines sentence of 60 months in prison for possession of a firearm by a convicted felon in June 2010. In doing so the court said that the sentence would allow Henderson to get drug treatment while in custody. The following year the Supreme Court decided Tapia and ruled that a judge could not lengthen a sentence for the sole reason of getting a defendant drug treatment in prison. Later in 2011 the Fifth Circuit Court of Appeals heard and denied his appeal. He then appealed to the Supreme Court. At the time of his sentence the status of increased sentences for drug treatment sentences was in flux and therefore it was not plain error. But by the time his appeal was heart the Supreme Court had ruled on Tapia and it was plain error to increase a sentence to get a defendant drug treatment.

The Supreme Court ruled that plain error occurs at the time of the appeal is decided and therefore it remanded the case for resentencing. The law allows appellate courts to consider errors that were plainly correct at the time of the trial court ruling and cases where the errors were plainly incorrect at the time of the trial court ruling. Therefore the Supreme Court could see no reason for appellate courts not to consider cases where the law was in flux at the time of the trial court decision and became plain prior to the appellate court decision.

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