Peo v. Hightower

• Court: Colorado Court of Appeals
• Decided: August 7, 2025
• Docket: 24CA1459
• Status: Unpublished

Opinion

24CA1459 Peo v Hightower 08-07-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1459 Arapahoe County District Court No. 07CR3472 Honorable David N. Karpel, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Marcus Ariel Hightower,

Defendant-Appellant.

ORDER AFFIRMED

Division V Opinion by JUDGE GROVE Welling and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 7, 2025

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Marcus Ariel Hightower, Pro Se ¶1 Defendant, Marcus Ariel Hightower, appeals the

postconviction court’s order denying Crim. P. 35(a) relief. We

affirm.

I. Background

¶2 In 2010, a jury convicted Hightower of first degree murder

after deliberation, felony murder, first degree burglary, robbery,

possession of a weapon by a previous offender, violation of a

protection order, and several crime of violence counts. The

convictions, which were affirmed on direct appeal, arose from

Hightower’s killing of his ex-girlfriend, who he shot four times and

stabbed sixty times before taking her things and leaving the scene.

People v. Hightower, (Colo. App. No. 11CA0018, May 29, 2014) (not

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

¶3 At sentencing, the trial court merged the two murder counts

and imposed “a sentence of life [in prison] without the possibility of

parole.” Although the mittimus contained a notation that the

sentence was imposed for “counts 1 and 2,” it did not reflect a

sentence corresponding to count 2 (felony murder) but rather only

count 1 (first degree murder after deliberation).

1 ¶4 In April 2024, Hightower filed a pro se Crim. P. 35(a) motion,

the denial of which is at issue here. He asserted that he was

incorrectly sentenced to two life sentences for the murder of a single

victim. And he asserted that the Department of Corrections (DOC)

failed to complete and transmit a violent offender report required by

section 18-1.3-406(1)(a), C.R.S 2024. For these reasons, he

claimed, his sentence was illegal because it was not in full

compliance with the statutory scheme. He asked the court to

(1) correct his sentence; (2) sentence him to the Department of

Health and Human Services for treatment; (3) remove the

“inappropriate” burglary and robbery charges; (4) issue an order

directing the DOC to prepare and transmit the “evaluation and

diagnostic report,” so the court could comply with statutory

requirements; and (5) “drop” his first degree murder charge and

resentence him to “felony murder within the appropriate sentencing

range.”

¶5 The postconviction court denied the motion in a written order,

concluding, as pertinent here, that Hightower’s sentence was not

illegal.

2 II. Discussion

¶6 Hightower is pro se on appeal. However, even applying the

most liberal construction standard to his opening brief, People v.

Cali, 2020 CO 20, ¶ 34, we discern only one contention. Citing

several authorities, including People v. Bartowsheski, 661 P.2d 235

(Colo. 1983), and section 18-3-408, C.R.S. 2024, he contends that

one of his “murder convictions must go” because “he has two

murder convictions in a case involving the death of a single victim,

one more than the Colorado legislature permits.”

¶7 Because Hightower does not reassert his postconviction claim

related to the DOC’s alleged failure to transmit the violent offender

report, we do not address it. See, e.g., People v. Osorio, 170 P.3d

796, 801 (Colo. App. 2007) (claims raised in a defendant’s

postconviction motion, but not reasserted on appeal, are

abandoned).

¶8 We note that Hightower frames his appellate contention as a

challenge to his conviction. Such a challenge is cognizable under

Crim. P. 35(c), not Crim. P. 35(a). See Crim. P. 35(c)(2)(I). To the

extent his appellate contention replicates his postconviction claim

that his sentence is illegal because he received two life sentences,

3 we confine our review to this claim, and we reject it because, in our

view, the record refutes it.

¶9 Crim. P. 35(a) allows a court to correct a sentence that was not

authorized by law or that was imposed without jurisdiction at any

time. Crim. P. 35(a). A sentence is not authorized by law when it is

inconsistent with the sentencing scheme established by the

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

2006). It is “imposed without jurisdiction” if it lies within the range

contemplated by statute but was otherwise imposed in excess of the

court’s subject matter jurisdiction. Id.

¶ 10 Hightower’s motion did not assert that the trial court lacked

jurisdiction to impose sentence. Nor did it dispute that life in

prison without the possibility of parole is the statutorily authorized

sentence for a class 1 felony, which it was for both felony murder

and murder after deliberation at the time Hightower was sentenced.

Instead, he asserted that his sentence was illegal because he

received two life sentences, even though there was only one victim.

But Hightower was not sentenced to two life sentences. Rather,

before imposing sentence, the trial court merged Hightower’s

murder convictions. The court then imposed “a” sentence of life in

4 prison without the possibility of parole. Indeed, the mittimus

reflects but one life sentence corresponding to count 1

notwithstanding the court’s notation that it was imposing the

sentence for “counts 1/2.”

¶ 11 Thus, Hightower’s challenge to his sentence fails.

III. Disposition

¶ 12 The order is affirmed.

JUDGE WELLING and JUDGE JOHNSON concur.