Peo v. Flores

24CA1938 Peo v Flores 02-05-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1938
El Paso County District Court No. 19CR3182
Honorable Marcus S. Henson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jason A. Flores,

Defendant-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE LUM
J. Jones and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 5, 2026

Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Jason A. Flores, Pro Se
¶1 Defendant, Jason A. Flores, appeals the district court’s order

denying his Crim. P. 35(a) motion to correct an illegal sentence. We

affirm.

I. Background

¶2 The People charged Flores with numerous criminal counts

stemming from an incident that occurred while police officers were

attempting to execute arrest and search warrants at the house

where Flores was staying. The probable cause affidavit alleged that

Flores began firing a handgun at the officers, who described hearing

“bullets whizzing past them.” After Flores was taken into custody,

he admitted to shooting “his gun through the window” and

described firing “three shots out of three different locations in the

residence,” that is, three shots at each location.

¶3 Pursuant to a plea agreement, Flores pleaded guilty to three

counts each of first degree assault and menacing. Each of the six

charged counts named a different victim. Flores also pleaded guilty

to three crime of violence counts corresponding to the first degree

assault charges, and he stipulated to consecutive sentencing for

those charges. In exchange, the prosecution agreed to dismiss the

remaining counts subject to the payment of restitution.

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¶4 The district court accepted the plea and, consistent with the

plea agreement, imposed consecutive sentences for the three first

degree assault counts. (The first degree assault sentences were

imposed consecutive to each other but concurrent with the three

menacing counts.)

¶5 Roughly three years later, Flores filed a pro se Crim. P. 35(a)

motion asserting that his first degree assault sentences were not

authorized by law. As we understand him, he first argued that his

first degree assault sentences must merge because the first degree

assault statute contemplates a unit of prosecution based on a

continuous course of conduct and “requires a court to punish a

defendant for a single involvement regardless of the number[] of

counts charged.” Alternatively, he argued that section 18-1-408(3),

C.R.S. 2025, mandated concurrent sentencing for his first degree

assault convictions because they were based on identical evidence

arising from the same criminal episode. Last, he asserted — albeit

in cursory fashion — that his plea was not knowingly and

intelligently made because he did not understand “why concur[r]ent

or consecutive sentences would be imposed for a[ ]single

continu[ous] act.”

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¶6 The district court denied relief, first noting that Flores’s plea

agreement contemplated consecutive sentences for the first degree

assault convictions. The court also determined that the crime of

violence statute required consecutive sentencing for Flores’s first

degree assault convictions. Flores appeals.

II. Applicable Law and Standard of Review

¶7 A “court may correct a sentence that was not authorized by

law or that was imposed without jurisdiction at any time and may

correct a sentence imposed in an illegal manner within the time

provided . . . for the reduction of sentence,” currently 126 days.

Crim. P. 35(a), (b). A sentence is “not authorized by law” if it is

inconsistent with the statutory scheme outlined by the legislature.

People v. Wenzinger, 155 P.3d 415, 418 (Colo. App. 2006).

¶8 The denial of a Crim. P. 35(a) claim asserting, as pertinent

here, that a sentence was not authorized by law presents a question

of law that we review de novo. Tennyson v. People, 2025 CO 31,

¶ 23.

III. Flores’s Consecutive Sentences Were Authorized by Law

¶9 Although difficult to discern, we conclude that Flores reasserts

a claim that his consecutive sentences for first degree assault are

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not authorized by law because they arose from the same criminal

episode and were based on identical evidence. We reject this claim.

¶ 10 A sentencing court generally has the discretion to impose

either concurrent or consecutive sentences. People v. Espinoza,

2020 CO 43, ¶ 8. However, when a defendant is convicted of two or

more “separate crimes of violence arising out of the same incident,”

the sentences for each crime of violence must run consecutively

rather than concurrently. Id. at ¶ 9 (citation omitted); see § 18-1.3-

406(1)(a), C.R.S. 2019. Section 18-1-408(3), on the other hand,

requires concurrent sentencing for crimes “based on the same act

or series of acts arising from the same criminal episode” when such

crimes are based on identical evidence. § 18-1-408(2), (3).

Although the supreme court hasn’t specifically resolved the issue,

see Espinoza, ¶ 10, divisions of this court have held that crimes of

violence are “separate” to the extent that they don’t rest on

“identical evidence” within the meaning of section 18-1-408(3). See

People v. O’Shaughnessy, 275 P.3d 687, 697 (Colo. App. 2010),

aff’d, 2012 CO 9; People v. Trujillo, 114 P.3d 27, 33 (Colo. App.

2004).

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¶ 11 Flores appears to assert that, because his first degree assault

convictions arose from a single volitional act — his single “3 sec.

burst” of gunfire — they are based on identical evidence and require

concurrent sentencing. But “[a] sentencing court is mandated to

impose concurrent sentences only when the evidence will support

no other reasonable inference than that the convictions were based

on identical evidence.” Juhl v. People, 172 P.3d 896, 900 (Colo.

2007). And here, the record is far from clear that this is the case.

Indeed, as noted, the probable cause affidavit reflects Flores’s

admission that he fired his gun three times each from three

different locations in the house. See People v. Maestas, 224 P.3d

405, 409 (Colo. App. 2009) (where there is factual support for a

defendant’s guilty pleas, the question of whether the evidence

supporting the pleas is identical can be determined by examining

evidentiary sources in the record, such as the arrest warrant

affidavit); Juhl, 172 P.3d at 898 (evidence is not identical, and

concurrent sentences are not required under section 18-1-408(3), if

the convictions are based on “multiple acts separated by time or

place”).

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¶ 12 But in any event, offenses like first degree assault, “defined in

terms of their victimization of another and committed against

different victims are not capable of being proved by identical

evidence” regardless of “whether or not the defendant’s volitional act

causing harm was the same.” Espinoza, ¶¶ 13, 21; see § 18-3-

202(1)(e), C.R.S. 2025 (first degree assault is categorized as an

offense against the person and requires “intent to cause serious

bodily injury upon the person of a peace officer” by threatening said

person with a deadly weapon); see also People v. Lowe, 2020 COA

116, ¶ 59 (first degree assault convictions naming two different

peace officers were not based on identical evidence where defendant

brandished a knife while engaged in a scuffle with both of them).

¶ 13 Consequently, in this case, the district court correctly rejected

Flores’s claim that his consecutive first degree assault sentences

were not authorized by law.

¶ 14 To the extent he reasserts it, we are not persuaded otherwise

by Flores’s claim related to the unit of prosecution for first degree

assault. As we understand his motion, he claimed that the offense

of first degree assault is defined as a continuing course of conduct

and therefore his three first degree assault convictions must merge.

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We note that the doctrine of merger sounds in the constitutional

prohibition against double jeopardy, and such constitutional issues

are not cognizable under Crim. P. 35(a). See People v. Henderson,

810 P.2d 1058, 1062 (Colo. 1991) (merger is “analyzed under

double jeopardy principles”); People v. Collier, 151 P.3d 668, 672

(Colo. App. 2006) (Crim. P. 35(c) is “the only rule that provides for

relief for constitutional claims.”).

¶ 15 Nonetheless, as the People point out, “[t]he doctrine of

continuing crimes can apply only where the General Assembly has

unmistakably communicated its intent to create such an offense.”

People v. McMinn, 2013 COA 94, ¶ 29 (citation omitted). We

perceive no such unmistakable intent in the first degree assault

statute, and Flores cites no applicable authority to suggest

otherwise.

IV. Claims Raised for the First Time on Appeal

¶ 16 For the first time on appeal, Flores asserts several new claims.

He contends that, in resolving his Crim. P. 35(a) motion, the district

court was required to sua sponte address (1) the “highly provoking”

circumstances and police conduct that led to his actions at the time

of the incident; (2) mitigating and exculpatory sentencing factors;

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and (3) plea counsel’s alleged ineffectiveness. He also suggests that

the court should have addressed the proportionality of his sentence.

And, as we understand him, he claims that the Department of

Corrections failed to transmit a violent offender report, depriving

the sentencing court of the opportunity to modify his sentence.

¶ 17 Because Flores raised none of these issues to the district

court, we will not address them. People v. Cali, 2020 CO 20, ¶ 34

(“[W]e will not consider issues not raised before the district court in

a motion for postconviction relief.”).

V. Disposition

¶ 18 The order is affirmed.

JUDGE J. JONES and JUDGE MEIRINK concur.

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