23CA0832 Peo v Kolpakov 02-13-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0832 Mesa County District Court No. 17CR892 Honorable Richard T. Gurley, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Aleksandr Kolpakov,
Defendant-Appellant.
ORDER AFFIRMED
Division IV Opinion by JUDGE HARRIS Grove and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 13, 2025
Philip J. Weiser, Attorney General, Emmy A. Langley, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Barbara A. Snow, Alternate Defense Counsel, Longmont, Colorado, for Defendant-Appellant ¶1 Defendant, Aleksandr Kolpakov, appeals the postconviction
court’s order denying his combined Crim. P. 35(a) and (c) motion.
We affirm.
I. Background
¶2 Kolpakov was charged with first degree murder, second degree
murder, first degree assault, possession of a controlled substance,
and two crime of violence counts. The charges stemmed from an
incident during which Kolpakov first shot his girlfriend, injuring
her, then shot her again as she crawled on the ground, killing her.
¶3 Kolpakov pleaded guilty to the first degree assault charge and
an added count of manslaughter. In exchange, the prosecution
dismissed the remaining charges. The parties agreed to consecutive
sentencing with a stipulated range of sixteen to forty-four years in
the Department of Corrections. They further agreed that the court
would impose (1) an aggravated range sentence for the
manslaughter count (based on Kolpakov’s use of hallucinogenic
drugs and a firearm); and (2) a crime of violence sentence for the
first degree assault count.
1 ¶4 Kolpakov admitted that there were “sufficient facts in this case
which could be presented at trial and which would result in a
strong likelihood of a conviction of this case (and a reasonable
likelihood of a conviction of the more serious charges filed).” And
he gave up his right to require the prosecution “to state these facts
after I enter my plea.” The district court accepted Kolpakov’s plea.
¶5 After considering a presentence investigation report (PSIR),
letters, victim impact statements, the goals of sentencing, and the
arguments of the parties, the district court sentenced Kolpakov to a
cumulative forty-year prison sentence — twelve years for
manslaughter consecutive to twenty-eight years for first degree
assault.
¶6 Through counsel, Kolpakov sought a sentence reduction under
Crim. P. 35(b), which the court denied.
¶7 Through new counsel, Kolpakov filed a combined Crim. P.
35(a) and (c) motion, the denial of which is at issue here. Under
Crim. P. 35(a), he claimed that both of his convictions were
supported by identical evidence and, therefore, the court erred by
imposing consecutive sentences.
2 ¶8 Under Crim. P. 35(c), he asserted that his Crim. P. 35(b)
counsel provided ineffective assistance by failing to appeal the
denial of his Crim. P. 35(b) motion.
¶9 The postconviction court denied the motion in a written order,
rejecting both the Crim. P. 35(a) and (c) claims. As to the Crim. P.
35(a) claim, the court found, among other things, that the two
charges to which Kolpakov pleaded guilty were not based on
identical evidence but rather the first degree assault was “supported
by the evidence that, initially, [Kolpakov] only shot the victim once.”
“A gap in time” occurred and Kolpakov then shot the victim again,
supporting the charge that involved the victim’s death.
¶ 10 As to Kolpakov’s Crim. P. 35(c) claim, the court found that
counsel did not provide ineffective assistance by failing to pursue
an appeal of the denial of the motion.
II. Discussion
¶ 11 Kolpakov contends that the postconviction court erred. He
reasserts his Crim. P. 35(a) claim that his consecutive sentences
were not authorized by law and a Crim. P. 35(c) claim that his Crim.
P. 35(b) counsel provided ineffective assistance. Reviewing these
3 matters de novo, we discern no error. See People v. Torrez, 2013
COA 37, ¶ 29; People v. Cali, 2020 CO 20, ¶ 14.
A. Crim. P. 35(a)
¶ 12 Under Crim. P. 35(a), an illegal sentence is one that is not
authorized by law, meaning that it is inconsistent with the statutory
scheme established by the legislature. People v. Wenzinger, 155
P.3d 415, 418 (Colo. App. 2006). Claims that a sentence was not
authorized by law may be raised at any time. Torrez, ¶ 29.
¶ 13 Though a district court ordinarily retains discretion to impose
either concurrent or consecutive sentences when a defendant is
convicted of multiple counts, section 18-1-408(3), C.R.S. 2024,
requires concurrent sentences when the evidence supporting each
count is identical. Torrez, ¶ 32; Juhl v. People, 172 P.3d 896, 899
(Colo. 2007).
¶ 14 However, “the mere possibility that identical evidence may
support two convictions” does not deprive the court of its discretion
to impose consecutive sentences. Juhl, 172 P.3d at 900. The
statute requires courts to impose concurrent sentences only when
4 the evidence will support no other reasonable inference than that
the convictions were based on identical evidence. Id.
¶ 15 A defendant’s right to concurrent sentencing under section 18-
1-408(3) applies regardless of whether the defendant is convicted at
trial or by a guilty plea. Id. But when a defendant waives the
establishment of a factual basis for an added charge, he also waives
the right to rely on section 18-1-408(3) to demand concurrent
sentencing. People v. Maestas, 224 P.3d 405, 409 (Colo. App.
2009).
¶ 16 We need not decide whether Kolpakov waived his right to
challenge the consecutive sentences because we perceive no error in
the postconviction court’s conclusion that concurrent sentencing
was not required.
¶ 17 In the context of guilty pleas, courts look to evidentiary
sources in the record to determine whether the charges were based
on identical evidence. People v. Fritts, 2014 COA 103, ¶ 42
(examining the PSIR and arrest warrant affidavit); Torrez, ¶ 39
(examining the charging document and the prosecutor’s statements
during the sentencing hearing).
5 ¶ 18 After accepting Kolpakov’s plea, the district court ordered a
PSIR in which Kolpakov gave a handwritten narrative of the events
underlying the offense. He admitted to pulling the trigger once,
after which his girlfriend fell to her back, alive. Then, as she went
“scrabbling,” he fired again, killing her.
¶ 19 At sentencing, the prosecutor played a 911 call for the court.
Though the call was not transcribed, the prosecutor characterized
the period between the first gunshot and the latter gunshots as a
“fairly large gap.” This gap, the prosecutor argued, was long
enough for Kolpakov to extract himself from the situation.
¶ 20 This record does not compel the inference that the convictions
were based on identical evidence. See Juhl, 172 P.3d at 900.
Rather, it supports a reasonable inference that the first shot caused
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23CA0832 Peo v Kolpakov 02-13-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0832 Mesa County District Court No. 17CR892 Honorable Richard T. Gurley, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Aleksandr Kolpakov,
Defendant-Appellant.
ORDER AFFIRMED
Division IV Opinion by JUDGE HARRIS Grove and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 13, 2025
Philip J. Weiser, Attorney General, Emmy A. Langley, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Barbara A. Snow, Alternate Defense Counsel, Longmont, Colorado, for Defendant-Appellant ¶1 Defendant, Aleksandr Kolpakov, appeals the postconviction
court’s order denying his combined Crim. P. 35(a) and (c) motion.
We affirm.
I. Background
¶2 Kolpakov was charged with first degree murder, second degree
murder, first degree assault, possession of a controlled substance,
and two crime of violence counts. The charges stemmed from an
incident during which Kolpakov first shot his girlfriend, injuring
her, then shot her again as she crawled on the ground, killing her.
¶3 Kolpakov pleaded guilty to the first degree assault charge and
an added count of manslaughter. In exchange, the prosecution
dismissed the remaining charges. The parties agreed to consecutive
sentencing with a stipulated range of sixteen to forty-four years in
the Department of Corrections. They further agreed that the court
would impose (1) an aggravated range sentence for the
manslaughter count (based on Kolpakov’s use of hallucinogenic
drugs and a firearm); and (2) a crime of violence sentence for the
first degree assault count.
1 ¶4 Kolpakov admitted that there were “sufficient facts in this case
which could be presented at trial and which would result in a
strong likelihood of a conviction of this case (and a reasonable
likelihood of a conviction of the more serious charges filed).” And
he gave up his right to require the prosecution “to state these facts
after I enter my plea.” The district court accepted Kolpakov’s plea.
¶5 After considering a presentence investigation report (PSIR),
letters, victim impact statements, the goals of sentencing, and the
arguments of the parties, the district court sentenced Kolpakov to a
cumulative forty-year prison sentence — twelve years for
manslaughter consecutive to twenty-eight years for first degree
assault.
¶6 Through counsel, Kolpakov sought a sentence reduction under
Crim. P. 35(b), which the court denied.
¶7 Through new counsel, Kolpakov filed a combined Crim. P.
35(a) and (c) motion, the denial of which is at issue here. Under
Crim. P. 35(a), he claimed that both of his convictions were
supported by identical evidence and, therefore, the court erred by
imposing consecutive sentences.
2 ¶8 Under Crim. P. 35(c), he asserted that his Crim. P. 35(b)
counsel provided ineffective assistance by failing to appeal the
denial of his Crim. P. 35(b) motion.
¶9 The postconviction court denied the motion in a written order,
rejecting both the Crim. P. 35(a) and (c) claims. As to the Crim. P.
35(a) claim, the court found, among other things, that the two
charges to which Kolpakov pleaded guilty were not based on
identical evidence but rather the first degree assault was “supported
by the evidence that, initially, [Kolpakov] only shot the victim once.”
“A gap in time” occurred and Kolpakov then shot the victim again,
supporting the charge that involved the victim’s death.
¶ 10 As to Kolpakov’s Crim. P. 35(c) claim, the court found that
counsel did not provide ineffective assistance by failing to pursue
an appeal of the denial of the motion.
II. Discussion
¶ 11 Kolpakov contends that the postconviction court erred. He
reasserts his Crim. P. 35(a) claim that his consecutive sentences
were not authorized by law and a Crim. P. 35(c) claim that his Crim.
P. 35(b) counsel provided ineffective assistance. Reviewing these
3 matters de novo, we discern no error. See People v. Torrez, 2013
COA 37, ¶ 29; People v. Cali, 2020 CO 20, ¶ 14.
A. Crim. P. 35(a)
¶ 12 Under Crim. P. 35(a), an illegal sentence is one that is not
authorized by law, meaning that it is inconsistent with the statutory
scheme established by the legislature. People v. Wenzinger, 155
P.3d 415, 418 (Colo. App. 2006). Claims that a sentence was not
authorized by law may be raised at any time. Torrez, ¶ 29.
¶ 13 Though a district court ordinarily retains discretion to impose
either concurrent or consecutive sentences when a defendant is
convicted of multiple counts, section 18-1-408(3), C.R.S. 2024,
requires concurrent sentences when the evidence supporting each
count is identical. Torrez, ¶ 32; Juhl v. People, 172 P.3d 896, 899
(Colo. 2007).
¶ 14 However, “the mere possibility that identical evidence may
support two convictions” does not deprive the court of its discretion
to impose consecutive sentences. Juhl, 172 P.3d at 900. The
statute requires courts to impose concurrent sentences only when
4 the evidence will support no other reasonable inference than that
the convictions were based on identical evidence. Id.
¶ 15 A defendant’s right to concurrent sentencing under section 18-
1-408(3) applies regardless of whether the defendant is convicted at
trial or by a guilty plea. Id. But when a defendant waives the
establishment of a factual basis for an added charge, he also waives
the right to rely on section 18-1-408(3) to demand concurrent
sentencing. People v. Maestas, 224 P.3d 405, 409 (Colo. App.
2009).
¶ 16 We need not decide whether Kolpakov waived his right to
challenge the consecutive sentences because we perceive no error in
the postconviction court’s conclusion that concurrent sentencing
was not required.
¶ 17 In the context of guilty pleas, courts look to evidentiary
sources in the record to determine whether the charges were based
on identical evidence. People v. Fritts, 2014 COA 103, ¶ 42
(examining the PSIR and arrest warrant affidavit); Torrez, ¶ 39
(examining the charging document and the prosecutor’s statements
during the sentencing hearing).
5 ¶ 18 After accepting Kolpakov’s plea, the district court ordered a
PSIR in which Kolpakov gave a handwritten narrative of the events
underlying the offense. He admitted to pulling the trigger once,
after which his girlfriend fell to her back, alive. Then, as she went
“scrabbling,” he fired again, killing her.
¶ 19 At sentencing, the prosecutor played a 911 call for the court.
Though the call was not transcribed, the prosecutor characterized
the period between the first gunshot and the latter gunshots as a
“fairly large gap.” This gap, the prosecutor argued, was long
enough for Kolpakov to extract himself from the situation.
¶ 20 This record does not compel the inference that the convictions
were based on identical evidence. See Juhl, 172 P.3d at 900.
Rather, it supports a reasonable inference that the first shot caused
injury to Kolpakov’s girlfriend; a brief time passed, during which
Kolpakov had time to reflect on his actions; and the subsequent
shots produced the girlfriend’s death. Thus, we cannot conclude
that identical evidence underlies the two convictions such that
concurrent sentencing was required.
6 B. Crim. P. 35(c)
¶ 21 Kolpakov asserts that Rule 35(b) counsel provided ineffective
assistance by failing to pursue an appeal on the basis that the court
failed to “consider deterrence as one of several sentencing factors to
determine an individualized and otherwise appropriate sentence.”
We disagree.
¶ 22 The test for determining ineffective assistance of counsel
requires a defendant to show that (1) counsel performed deficiently
in that the representation fell below an objective standard of
reasonableness and (2) the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S 668, 687-88 (1984).
¶ 23 Although Kolpakov claims that the district court failed to
consider deterrence as a sentencing factor when ruling on his Rule
35(b) motion, the record belies this claim. The court found that
“[t]he length of [Kolpakov’s] sentence decreases the likelihood [that
he] would victimize anyone else in this community.” And it
expressed “hope that a sentence such as that imposed in this case
would deter others from committing crime — certainly from
consuming illegal drugs because bad things can result.”
7 ¶ 24 To the extent the court acknowledged some general skepticism
that long sentences deter others from committing crimes, we see
nothing objectionable about those comments. To the contrary, we
think the comments underscore the court’s careful consideration of
this factor.
¶ 25 This record clearly reflects that the district court considered
deterrence both as to the individual and as a theory applicable to
others. Thus, we cannot conclude that Rule 35(b) counsel
performed deficiently by failing to pursue an appeal of the Crim. P.
35(b) order on the basis that the court failed to “consider
deterrence.”
III. Disposition
¶ 26 The order is affirmed.
JUDGE GROVE and JUDGE PAWAR concur.