Peo v. Jordan

23CA0813 Peo v Jordan 05-29-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0813
Fremont County District Court No. 04CR498
Honorable Lynette M. Wenner, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Christopher Ikeen Jordan,

Defendant-Appellant.

ORDER AFFIRMED

Division VII
Opinion by JUDGE PAWAR
Lipinsky and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 29, 2025

Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Christopher Ikeen Jordan, Pro Se
¶1 Defendant, Christopher Ikeen Jordan, appeals the

postconviction court’s order denying their Crim. P. 35(a) motion.

We affirm.

I. Background

¶2 In 2006, a jury convicted Jordan of second degree murder,

first degree felony murder, two counts of first degree burglary, theft,

and two crime of violence counts. The trial court sentenced Jordan

to life in prison without the possibility of parole.

¶3 Jordan directly appealed, arguing in part that the trial court

erred by denying their motion to dismiss based on a violation of

their right to a speedy trial. A division of this court affirmed but

remanded for correction of the mittimus. People v. Jordan, (Colo.

App. No. 06CA2393, Aug. 21, 2008) (not published pursuant to

C.A.R. 35(f)). The division concluded that

the mittimus must be corrected to reflect the
trial court’s entry of only one conviction for
felony murder. As the trial court correctly
recognized at sentencing, the theft conviction
merged into the burglary conviction because
theft was the underlying substantive crime for
the burglary, and both burglary convictions
merged into the felony murder conviction. See
People v. Bartowsheski, 661 P.2d 235, 245-46
(Colo. 1983). Additionally, defendant could not
be convicted of both first degree murder and

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second degree murder because there was only
one victim. See People v. Driggers, 812 P.2d
702, 703-04 (Colo. App. 1991).

Id. at 14. The mandate was issued on December 30, 2008.

¶4 On remand, the trial court amended the mittimus to reflect the

merger of the counts and that Jordan was convicted of only felony

murder.

¶5 In February 2011, Jordan filed a Crim. P. 35(c) motion. They

alleged, among other things, that their speedy trial rights had been

violated. The postconviction court denied the claim as successive.

Jordan did not appeal.

¶6 In February 2013, Jordan filed a second Crim. P. 35(c) motion,

alleging newly discovered evidence supported their “continuing

speedy trial issues.” The postconviction court denied the motion, in

part, as successive. Jordan appealed, and a division of this court

affirmed. People v. Jordan, (Colo. App. No. 13CA0812, Dec. 3,

2015) (not published pursuant to C.A.R. 35(f)).

¶7 In January 2018, Jordan filed a third Crim. P. 35(c) motion,

again raising a speedy trial claim. The postconviction court denied

the claim as successive. Jordan did not appeal.

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¶8 In May 2021, Jordan filed a fourth Crim. P. 35(c) motion, this

time asserting claims regarding errors in the jury instructions at

their trial. Specifically, they argued that jury instruction number

eighteen was confusing to the jury and, consequently, Jordan

should be resentenced for second degree murder only “and all other

charges/sentences [should] be vacated.” They also argued that the

jury did not complete the special interrogatories for all verdicts and,

therefore, their sentence was “constitutionally unreasonable, and

amount[ed] to both plain and structural error.” The postconviction

court denied Jordan’s motion as successive, apparently assuming

they had raised the same speedy trial issues that they raised in

previous postconviction motions. Jordan did not appeal.

¶9 Instead, in January 2023, Jordan filed a Crim. P. 35(a) motion

raising similar claims to those asserted in the 2021 Crim. P. 35(c)

motion, in addition to several new claims. They argued that

(1) their multiple convictions violated double jeopardy; (2) their

sentence to life without parole was unconstitutional under the

Eighth Amendment and Miller v. Alabama, 567 U.S. 460 (2012);

(3) their due process, equal protection, and jury trial rights were

violated because jury instruction number eighteen was confusing to

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the jury and the jury allegedly failed to complete special

interrogatories for the verdicts; and (4) their sentence to life without

parole was unconstitutional considering recent changes to the

felony murder statute. Jordan requested the appointment of

counsel and a hearing.

¶ 10 The postconviction court denied Jordan’s motion without the

appointment of counsel or a hearing. The court found that

(1) Jordan’s double jeopardy claim was successive under Crim. P.

35(c); (2) Miller was not applicable to their case; (3) the jury

instruction and special interrogatory claim was successive under

Crim. P. 35(c); and (4) the changes to the felony murder statute did

not apply to them.

II. Analysis

¶ 11 On appeal, Jordan contends that the postconviction court

erred by denying their 2023 Crim. P. 35(a) motion. We disagree.

They reassert two claims in their opening brief: (1) their multiple

convictions violated double jeopardy; and (2) the jury instructions

were confusing to the jury and the special interrogatories were

incomplete, thereby requiring vacatur of their felony murder

conviction and resentencing for second degree murder.

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¶ 12 For the first time in their reply brief, Jordan reasserts their

claim regarding amendments to the felony murder statute.

However, we do not address claims raised for the first time in a

reply brief. See People v. Czemerynski, 786 P.2d 1100, 1107 (Colo.

1990), abrogated on other grounds by Rojas v. People, 2022 CO 8.

As to Jordan’s remaining claim that their sentence is

unconstitutional under Miller, Jordan appears to concede that the

postconviction court properly denied this claim.

A. Standard of Review

¶ 13 We review the summary denial of a postconviction motion de

novo, regardless of whether it is a motion under Crim. P. 35(a) or

Crim. P. 35(c). See Magana v. People, 2022 CO 25, ¶ 33 (legality of

a sentence); People v. Gardner, 250 P.3d 1262, 1266 (Colo. App.

2010) (summary denial of a Crim. P. 35(c) motion).

¶ 14 A court shall deny a Crim. P. 35(c) claim as successive if the

claim was raised, or could have been raised, in a previous appeal or

postconviction proceeding. Crim. P. 35(c)(3)(VI), (VII). The language

of the rule “is mandatory rather than permissive.” People v. Taylor,

2018 COA 175, ¶ 17.

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B. Double Jeopardy

¶ 15 Jordan argues that their sentence is illegal “under Federal

double jeopardy analysis” “[b]ecause [they] [were] subjected to dual

convictions of murder for a single victim, without vacating the other

murder count.”

¶ 16 Because Jordan does not claim that their sentence is

inconsistent with the statutory scheme but rather claims it violates

double jeopardy, their assertion is cognizable under Crim. P. 35(c),

not Crim. P. 35(a). See Crim. P. 35(c)(2)(I) (providing postconviction

relief from sentences imposed in violation of the Constitution or the

laws of the United States or the constitution or laws of Colorado);

People v. Collier, 151 P.3d 668, 672 (Colo. App. 2006) (a

postconviction claim that multiple sentences violated double

jeopardy must be brought in a timely Crim. P. 35(c) proceeding).

¶ 17 Because Jordan could have raised this claim in their direct

appeal or a prior Crim. P. 35(c) motion but did not, the

postconviction court did not err by denying it as successive.

¶ 18 Nonetheless, we conclude that Jordan’s claim also fails

because they have received the relief they seek. Jordan claims that

“[t]he Sentencing Court did not ‘merge’ the second degree murder

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count into the felony murder count, nor did the Court ‘vacate’ the

conviction for second degree murder either.” But on direct appeal,

a division of this court agreed with Jordan that the mittimus

needed to be corrected to reflect a merger of the second degree

murder conviction into the felony murder conviction. And as

discussed, the trial court amended the mittimus in accordance with

the division’s remand order, as is reflected in the record on appeal.

This was all that was necessary. Contrary to Jordan’s assertion, a

merger of the murder convictions did not require “another

sentencing hearing.”

C. Jury Instructions and Special Interrogatories

¶ 19 Jordan’s claim regarding confusing jury instructions and

incomplete special interrogatories is also not cognizable under

Crim. P. 35(a), as Jordan does not claim that their sentence is

inconsistent with the statutory scheme. See People v. Rodriguez,

914 P.2d 230, 254-55 (Colo. 1996) (allegations of error in jury

instructions generally do not constitute claims of constitutional

error appropriate for postconviction review).

¶ 20 But to the extent Jordan’s claim could be construed as a

constitutional claim under Crim. P. 35(c), it also fails. Though we

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disagree with the prosecution that Jordan’s motion was untimely

under Crim. P. 35(c) and section 16-5-402(1), C.R.S. 2024 (no time

limit to collaterally challenge a class 1 felony), it was properly

denied as successive. The postconviction court denied this claim as

successive because Jordan could have raised it on direct appeal or

in a previous Crim. P. 35(c) motion. Jordan claims that “raising

this issue in [their] prior [2021] 35(c) motion, is precisely what

Jordan did,” but the claim “was never fully and finally litigated.”

This is so, Jordan argues, because the court mistakenly assumed

Jordan was again raising speedy trial issues in their 2021 Crim. P.

35(c) motion and denied the motion on that ground.

¶ 21 It is true that the court never directly addressed Jordan’s

similar claim from the 2021 Crim. P. 35(c) motion, appearing to

have mistaken the claim as another speedy trial challenge. Still,

the court did not err by subsequently denying the claim from the

2023 Crim. P. 35(a) motion as successive. Crim. P. 35(c)(3)(VII)

states that a court “shall deny any claim that could have been

presented in an appeal previously brought or postconviction

proceeding previously brought.” Because Jordan could have

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brought this claim in their direct appeal but did not, it must be

denied as successive.

¶ 22 For these reasons, we conclude that the postconviction court

did not err by denying Jordan’s 2023 Crim. P. 35(c) motion.

D. Additional Claim

¶ 23 For the first time in their reply brief, Jordan claims that their

sentence is illegal under the Emancipation Proclamation. However,

as discussed above, we do not address issues raised for the first

time in a reply brief. See Czemerynski, 786 P.2d at 1107. Nor do

we address issues not raised before the district court in a

postconviction motion. See People v. Cali, 2020 CO 20, ¶ 34.

III. Disposition

¶ 24 The order is affirmed.

JUDGE LIPINSKY and JUDGE LUM concur.

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