Peo v. Kasper

23CA1788 Peo v Kasper 10-09-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1788
Arapahoe County District Court No. 91CR1753
Honorable Darren L. Vahle, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jonathan Kasper,

Defendant-Appellant.

ORDER AFFIRMED

Division II
Opinion by JUDGE MEIRINK
Fox and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 9, 2025

Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Jonathan Kasper, Pro Se
¶1 Defendant, Jonathan Kasper, appeals the postconviction

court’s denial of his motion to correct an illegal sentence and to

appoint postconviction counsel. We affirm.

I. Background

¶2 In 1993, a jury found Kasper guilty of second degree murder,

felony murder, first degree burglary, second degree burglary, and

attempted aggravated robbery. The trial court vacated the second

degree murder conviction and merged the first degree burglary,

second degree burglary, and attempted aggravated robbery counts

into the felony murder conviction. The trial court sentenced Kasper

to a term of life imprisonment without the possibility of parole, as

required for felony murder under the then-governing statute.1

¶3 Kasper appealed, and a division of this court affirmed his

conviction in 1995. People v. Kasper, (Colo. App. Nos. 94CA0012 &

94CA0015, Feb. 16, 1995) (not published pursuant to C.A.R. 35(f)).

¶4 In 1996, Kasper filed a Crim. P. 35(c) motion, which appointed

counsel later supplemented. Kasper argued that trial counsel was

1 When Kasper committed his offenses, the minimum sentence for a

class 1 felony committed on or after July 1, 1985, but before July 1,
1993, was life imprisonment. § 18-1-105(1)(a)(IV), C.R.S. 1993.

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ineffective and that the court erred by admitting statements Kasper

involuntarily made during a custodial interrogation. The

postconviction court denied the motion after an evidentiary hearing,

and a division of this court affirmed the denial. People v. Kasper,

(Colo. App. No. 03CA0825, Dec. 9, 2004) (not published pursuant to

C.A.R. 35(f)).

¶5 Proceeding pro se, Kasper filed a second Crim. P. 35(c) motion

in 2005, raising the same issues he raised in his first Crim. P. 35(c)

motion. The postconviction court denied the second motion, and

another division of this court affirmed the denial. People v. Kasper,

(Colo. App. No. 06CA1003, Apr. 5, 2007) (per curiam) (not

published pursuant to C.A.R. 35(f)).

¶6 In 2023, again acting pro se, Kasper filed a postconviction

motion “pursuant to Crim. P. 35(a)” to correct his illegal sentence.

Kasper argued that his sentence was illegal because the trial court

erred by merging the burglary and attempted robbery counts into

the felony murder conviction. Although Kasper requested

appointed counsel in his Crim. P. 35(a) motion, he also filed a

separate motion seeking appointment of postconviction counsel

under Crim. P. 35(c)(IV) and (V). The postconviction court ordered

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the People to respond to Kasper’s Crim. P. 35(a) motion. After

considering the motions and response, the court denied the motion

and Kasper’s request to appoint postconviction counsel. Kasper

now appeals.

II. Analysis

¶7 Kasper raises two issues on appeal.2 First, he contends that

his sentence for felony murder is not authorized by law because the

trial court illegally merged the nonmurder counts into the felony

murder conviction. Second, he claims that the postconviction court

erred by failing to appoint counsel to perfect his postconviction

petition. Because the first issue Kasper raises is not cognizable

under Crim. P. 35(a) or (c), the postconviction court correctly denied

Kasper’s postconviction motion. And we disagree with his second

contention.

2 Kasper filed his appeal pro se. We broadly construe his pleadings
“to ensure [he is] not denied review of important issues because of
[his] inability to articulate [his] argument like a lawyer.” Jones v.
Williams, 2019 CO 61, ¶ 5. However, we will not rewrite his
pleadings or act as an advocate on his behalf. Arnold v. Brent, 2024
COA 104, ¶ 8.

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A. Kasper’s Illegal Sentence Claim is Not Cognizable Under Crim.
P. 35(a) or Crim. P. 35(c)

¶8 Kasper argues that the trial court acted outside of its statutory

authority when it merged his nonmurder counts into his felony

murder count and sentenced him to life without the possibility of

parole. Kasper argues that his sentence does not comply with

Callis v. People, 692 P.2d 1045, 1054 (Colo. 1984), which requires

the felony that most directly contributes to the death of the victim

to serve as the essential element of a felony murder conviction.

Because the court merged both the second degree burglary and

attempted aggravated robbery into his felony murder conviction,

instead of merging only the second degree burglary count, Kasper

claims his sentence is illegal and must be corrected.3

1. Standard of Review and Applicable Law

¶9 Whether construed as a denial of a Crim. P. 35(a) motion to

correct an illegal sentence or a Crim. P. 35(c) motion challenging

the constitutionality of a sentence, we review the summary denial of

3 Kasper believes his first degree burglary charge should have been

vacated because the jury’s finding of guilt on the lesser included
charge of second degree burglary was an implied acquittal of first
degree burglary.

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a postconviction claim de novo. See, e.g., People v. Tennyson, 2023

COA 2, ¶ 9, aff’d, 2025 CO 31; People v. Medina, 2019 COA 103M,

¶ 4. Likewise, we review the legality of a sentence de novo.

Tennyson, ¶ 9.

¶ 10 Under Crim. P. 35(a), “[t]he court may correct a sentence that

was not authorized by law or that was imposed without jurisdiction

at any time.” A sentence is “not authorized by law” if it is

inconsistent with the statutory scheme outlined by the legislature,

and an allegation that a sentence is illegal raises questions about

the sentencing court’s subject matter jurisdiction. People v. Collier,

151 P.3d 668, 670 (Colo. App. 2006).

¶ 11 Under Crim. P. 35(c), a defendant may challenge a conviction

or sentence on multiple grounds, including that the sentence was

imposed in violation of the Constitution or laws of the United

States. See Crim. P. 35(c)(2)(I). A postconviction court must deny a

successive Crim. P. 35(c) claim that was, or could have been, raised

and resolved in a prior appeal or postconviction proceeding. Crim.

P. 35(c)(3)(VI), (VII).

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2. Discussion

¶ 12 Kasper’s claim is not cognizable under Crim. P. 35(a). The

purpose of Crim. P. 35(a) is to cure a sentence not authorized by

law. Tennyson, ¶ 10. Kasper is not challenging the sentence the

trial court imposed; rather, he argues that the trial court

erroneously merged more than one ulterior predicate felony into the

felony murder conviction. Because Kasper is not arguing that life in

prison for his felony murder conviction is unauthorized by law or

inconsistent with the statutory scheme outlined by the legislature

at the time of sentencing, his claim fails under Crim. P. 35(a).

¶ 13 Kasper’s claim also fails under Crim. P. 35(c). First, Kasper

asserts no basis for postconviction review cognizable under Crim. P.

35(c)(2). He does not, for example, claim that the trial court lacked

subject matter jurisdiction or that his conviction or sentence was

imposed in an unconstitutional manner. Rather, Kasper argues

that the trial court should have imposed separate consecutive

sentences for his felony murder conviction and the remaining

predicate offense. Because this is not a basis for relief under Crim.

P. 35(c), the postconviction court was correct in summarily denying

his motion. See People v. Duran, 2025 COA 34, ¶ 15 (recognizing

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that a postconviction court may deny a Crim. P. 35(c) motion

without an evidentiary hearing if the allegations are bare and

conclusory or the allegations, even if true, do not warrant relief).

¶ 14 Second, even if Kasper had asserted a cognizable claim for

postconviction review, the postconviction court would have to deny

it as successive. See Crim. P. 35(c)(3)(VII) (claims that could have

been presented in an appeal or a previous postconviction

proceeding are successive); see also People v. Taylor, 2018 COA

175, ¶ 17 (recognizing that the postconviction court “shall” deny

postconviction claims that “could have been presented in an appeal

previously brought or postconviction proceeding previously

brought” (quoting Crim. P. 35(c)(3)(VII))). Because Kasper could

have raised his Callis argument in his direct appeal or in one of his

prior Crim. P. 35(c) motions, the postconviction court was required

to deny his claim as successive.

B. The Postconviction Court Did Not Err by Failing to Appoint
Postconviction Counsel

¶ 15 Kasper contends that “Crim. P. 35 must be construed in its

entirety” and that by considering Crim. P. 35(a) independently from

Crim. P. 35(c), the postconviction court incorrectly denied his

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request for appointed counsel. By not considering the entire rule,

Kasper argues, the postconviction court failed to comply with Crim.

P. 35(c)(3)(IV) and (V), which entitled him to representation at the

postconviction stage of his case. We disagree.

¶ 16 We review de novo whether a defendant has a right to counsel

in postconviction proceedings. See Silva v. People, 156 P.3d 1164,

1167-69 (Colo. 2007). Any limited right to postconviction counsel is

triggered only if the motion survives the postconviction court’s

initial review under Crim. P. 35(c)(3)(IV). Here, no right to counsel

was triggered because, following an initial review, the postconviction

court summarily denied Kasper’s motion for postconviction relief.

¶ 17 Further, any failure by the postconviction court to comply with

Crim. P. 35(c)(3)(IV) and (V) when it did not refer Kasper’s motion to

the public defender and instead ordered the People to respond to

Kasper’s postconviction motion was harmless. See People v.

Nozolino, 2023 COA 39, ¶ 8 (if a postconviction court’s order does

not comply with the provisions of Crim. P. 35(c)(3)(V), an appellate

court reviews for harmless error). An error is harmless if it did not

affect the fairness of the proceedings. Id.

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¶ 18 Because none of Kasper’s claims had “arguable merit,” the

postconviction court was correct to summarily deny his motion. If a

court summarily denies a postconviction motion, it need not refer

the motion to the public defender. People v. Segura, 2024 CO 70,

¶ 7. We therefore cannot say that Kasper was prejudiced or that

the postconviction court’s failure to comply with Crim. P. 35(c)(3)(IV)

and (V) affected the fairness of the proceedings.

III. Disposition

¶ 19 We affirm.

JUDGE FOX and JUDGE BROWN concur.

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