Peo v. Kelley

• Court: Colorado Court of Appeals
• Decided: August 28, 2025
• Docket: 23CA1685
• Status: Unpublished

Opinion

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.

1 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,

2 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.