CourtListener 10663357•Peo v. Kelley
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23CA1685 Peo v Kelley 08-28-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1685
City and County of Denver District Court No. 17CR20003
Honorable Eric M. Johnson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Brent M. Kelley,
Defendant-Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE J. JONES
Moultrie and Martinez*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 28, 2025
Philip J. Weiser, Attorney General, Brian M. Lanni, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Christopher Gehring, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Defendant, Brent M. Kelley, appeals the postconviction court’s
order denying his Crim. P. 35(b) motion for reconsideration of his
sentence. We reverse.
I. Background
¶2 A jury found Kelley guilty of second degree murder, possession
of a controlled substance, and a special offender sentence enhancer
relating to the controlled substance conviction. The trial court
imposed consecutive sentences totaling forty-seven years in prison.
¶3 Kelley directly appealed, and a division of this court affirmed
the judgment of conviction. See People v. Kelley, (Colo. App. No.
19CA0161, Aug. 4, 2022) (not published pursuant to C.A.R. 35(e)).
¶4 Thereafter, with the assistance of counsel, Kelley filed a timely
request to reconsider his sentence under Crim. P. 35(b). The
postconviction court denied the motion in a written order, ruling as
follows: “Based on my review of the file, including the subject
motion, probations reports, and my notes from the sentencing
hearing, I find that the sentence I imposed was, and remains,
appropriate.” However, the postconviction court judge didn’t
preside over the sentencing hearing or impose the sentence — the
judge who presided over the trial did.
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II. Analysis
¶5 Kelley contends, and the People agree, that the postconviction
court erred by purporting to base its decision on notes which could
not exist. We agree with the parties.
¶6 The purpose of Crim. P. 35(b) is to permit the district court
one opportunity to reconsider a previously imposed sentence. See
People v. Fuqua, 764 P.2d 56, 60 (Colo. 1988); People v. Olivas, 911
P.2d 675, 677 (Colo. App. 1995). The decision whether to reduce a
sentence under Crim. P. 35(b) is within the court’s sound
discretion. People v. Dunlap, 36 P.3d 778, 780 (Colo. 2001).
¶7 As indicated above, the postconviction court judge noted that
he had considered Kelley’s motion, including “my notes from the
sentencing hearing” and found that the sentence “I imposed was,
and remains, appropriate.” (Emphasis added.) But that can’t be
right because that judge didn’t preside over the sentencing hearing
or impose the sentence. Thus, we agree with the parties that the
court ruled contrary to the record and, in effect, failed to state the
“basic reasons” supporting its decision. See Olivas, 911 P.2d at
677; see also Hoang v. People, 2014 CO 27, ¶ 12 (a court abuses its
discretion when its decision is manifestly arbitrary, unreasonable,
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or unfair); People v. Cook, 2014 COA 33, ¶ 45 (no abuse of
discretion when the “findings are supported by the record”).
¶8 We therefore reverse the order denying the motion for
reconsideration.
III. Disposition
¶9 The order is reversed, and the case is remanded to the
postconviction court with instructions to consider the merits of
Kelley’s Crim. P. 35(b) motion and to enter a written order stating
the basic reasons for granting or denying the motion.
JUDGE MOULTRIE AND JUSTICE MARTINEZ concur.
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