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.
1 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
2 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.
3 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.
4 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).
5 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
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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.
1 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
2 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.
3 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.
4 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).
5 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
6 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
7 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.
8 ¶ 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.