Peo v. Kover

• Court: Colorado Court of Appeals
• Decided: February 26, 2026
• Docket: 24CA1181
• Status: Unpublished

Opinion

24CA1181 Peo v Kover 02-26-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1181 El Paso County District Court No. 17CR2444 Honorable Jill M. Brady, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jason Matthew Kover,

Defendant-Appellant.

ORDER AFFIRMED

Division III Opinion by JUDGE DUNN Moultrie and Bernard*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 26, 2026

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

Mark G. Walta, Alternate Defense Counsel, Littleton, 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 Jason Matthew Kover appeals the district court’s order

denying his postconviction claim that his twelve-year habitual

criminal sentence is grossly disproportionate. We affirm.

I. Background

¶2 The prosecution charged Kover with, among other things, first

degree felony murder and second degree murder stemming from

evidence that he repeatedly stabbed a victim during an altercation.

A jury acquitted Kover of the charged offenses but convicted him of

the lesser included offense of criminally negligent homicide (the

triggering offense). People v. Kover, slip op. at ¶ 7 (Colo. App. No.

18CA2271, Nov. 4, 2021) (not published pursuant to C.A.R. 35(e))

(Kover I).

¶3 The prosecution also charged Kover as a habitual criminal

based on four prior El Paso County felony convictions (the predicate

offenses):

• a 2000 conviction for false information to a pawn broker;

• 2001 and 2003 convictions for aggravated motor vehicle

theft; and

• a 2006 conviction for conspiracy to commit robbery on an

at-risk person.

1 ¶4 After a bench trial, the court concluded that the prosecution

proved the four predicate offenses beyond a reasonable doubt and

adjudicated Kover a habitual criminal. Id. at ¶ 8. The court then

sentenced Kover to twelve years in prison. Id. Kover directly

appealed his conviction and habitual criminal adjudication, and a

division of this court affirmed. See generally id.

¶5 Kover timely filed a pro se Crim. P. 35(c) motion. He asserted

that his trial counsel provided ineffective assistance by failing to

request a proportionality review of his habitual criminal sentence.

Kover also cursorily identified claims of “jury instruction self

defense” and “prosecutorial misconduct.”

¶6 The district court granted Kover’s request for postconviction

counsel. Appointed counsel filed a supplemental motion asserting

that both trial counsel and direct appeal counsel provided

ineffective assistance by failing to challenge the proportionality of

Kover’s sentence. The supplement did not reassert or develop the

remaining two issues asserted in Kover’s pro se motion.1 After the

1 Nor does Kover raise them on appeal. Thus, we deem them abandoned. See People v. Smith, 2024 CO 3, ¶ 18 (noting that abandonment “typically arises from a party’s decision not to pursue or reassert a claim that the party had raised previously”).

2 prosecution conceded that Kover was entitled to an abbreviated

proportionality review, the district court elected to conduct such a

review without deciding whether trial or direct appeal counsel were

ineffective.

¶7 The court ordered further briefing on the facts and

circumstances underlying Kover’s triggering and predicate offenses.

¶8 The prosecution submitted the arrest warrant affidavits

underlying Kover’s predicate offenses. Kover replied and, with the

exception of the false information to a pawnbroker conviction, did

not dispute the facts set forth by the prosecution.

¶9 In a detailed written order the district court found that,

considered together, Kover’s triggering and predicate offenses were

not so lacking in gravity or seriousness as to give rise to an

inference that his twelve-year sentence was grossly

disproportionate; nor was the sentence unduly harsh, particularly

considering Kover’s parole eligibility. The court thus concluded that

an extended proportionality review was not warranted and didn’t

grant a hearing.

3 II. Proportionality

¶ 10 Kover contends that the district court erred by ruling that his

twelve-year sentence does not give rise to an inference of gross

disproportionality and thus also erred by declining to conduct an

extended proportionality review. We disagree.

A. Legal Principles and Standard of Review

¶ 11 The United States and Colorado Constitutions prohibit

“extreme sentences that are ‘grossly disproportionate’ to the crime.”

Wells-Yates v. People, 2019 CO 90M, ¶ 5 (quoting Harmelin v.

Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)).

¶ 12 When, as here, a defendant challenges the proportionality of a

habitual criminal sentence, the district court must first conduct an

abbreviated proportionality review assessing (1) the gravity and

seriousness of both the triggering and predicate offenses and (2) the

harshness of the penalty imposed for the triggering offense. Id. at

¶ 23.

¶ 13 Although some crimes are per se grave and serious, the gravity

or seriousness of an offense typically requires a fact-based inquiry

into several factors, including the harm caused or threatened to the

victim or society; whether the offense involved violence or the threat

4 of violence; whether the offense was an attempted or a completed

crime; whether the defendant was an accessory, complicitor, or

principal; and the defendant’s culpability and motive. McDonald v.

People, 2024 CO 75, ¶ 12. In analyzing the gravity or seriousness

of the triggering and predicate offenses, a court need not classify

each crime as grave and serious. People v. Terry, 2019 COA 9,

¶ 41, overruled on other grounds by People v. Segura, 2024 CO 70.

Instead, it determines whether, in combination, those offenses “are

so lacking in gravity or seriousness so as to suggest that the

sentence is unconstitutionally disproportionate to the crime.”

Wells-Yates, ¶ 23.

¶ 14 In assessing the harshness of the penalty, the court should

consider both the length of the sentence and the defendant’s parole

eligibility, affording “great deference” to the legislature’s

determination. Id. at ¶ 62. Given the “primacy of the General

Assembly in crafting sentencing schemes,” an abbreviated

proportionality review will almost always result in a conclusion that

the sentence is constitutional. Id. at ¶ 21 (citation omitted).

¶ 15 We review de novo whether a sentence raises an inference of

gross disproportionality. See id. at ¶ 35. We likewise review de

5 novo the denial of a Crim. P. 35(c) motion without a hearing. People

v. Cali, 2020 CO 20, ¶ 14.

B. The Gravity and Seriousness of the Triggering and Predicate Offenses and the Harshness of the Penalty

¶ 16 Although the People ask us to determine that criminally

negligent homicide is per se grave and serious, we need not reach

that issue. See People v. Kennedy, 2025 CO 63, ¶ 23 (noting that,

notwithstanding the “enormous” harm that crimes involving death

necessarily involve, criminally negligent homicide “still [has] not

been designated as per se grave or serious”). Instead, we conclude

that Kover’s triggering offense was grave and serious under the

facts and circumstances adduced at trial:

• After being asked to leave the victim’s home, Kover and a

companion returned uninvited to the home.

• Kover knocked on a bedroom window, which, because it

was not adequately secured, fell into the house.

• One eyewitness testified that Kover attempted to enter the

house through the window.

• The victim pushed Kover back out and either climbed or fell

out after him.

6 • The victim’s girlfriend handed the victim a metal tool

resembling a prybar.

• During an ensuing fight between Kover and the victim,

Kover pulled out a knife and stabbed the victim multiple

times, inflicting ten penetrating stab wounds to the neck,

torso, and thigh.

• An eyewitness said that Kover stabbed the victim after the

victim was disarmed and while he was either held or

overtaken by Kover’s companion.

• The victim died from “massive bleeding” before emergency

medical personnel arrived.

• Kover and his companion fled the scene.

¶ 17 We conclude that these undisputed facts and circumstances

demonstrate a significant harm to the victim and society, despite

the fact that the jury found Kover guilty of a lesser included offense

with a correspondingly lesser mental state. Indeed, acting as the

principal, Kover completed a violent act which resulted in the

victim’s death. Kover then fled the scene. The act, which involved

multiple stabbings, demonstrated a magnitude of violence that

posed significant harm not only to the victim but to society. We

7 therefore agree with the district court that under the circumstances

presented, the triggering offense is grave or serious.

¶ 18 We also agree with the district court’s assessment of the

predicate offenses. Though three of the four predicate offenses were

not, on their own, grave and serious, the facts underlying Kover’s

2006 conviction for conspiracy to commit robbery on an at-risk

person indicate a threat of grave harm to the victim and society.

And, notwithstanding the fact that Kover did not act as the

principal, the facts and circumstances underlying this conviction

reflect:

• After injecting methamphetamine, Kover drove a companion

around a mall looking for victims in order to steal their

purses.

• The companion told Kover to stop the vehicle, exited, and

approached an “old lady.”

• The companion “snatched” the old lady’s purse and

slammed her into the side of the vehicle.

• Kover “knew” his companion was going to steal the purse

because they had discussed it.

8 • Once Kover realized that police were in pursuit, he made

the decision to try and outrun the police, driving at speeds

double the posted limit, failing to observe traffic signals,

and ignoring numerous verbal commands to stop once he

exited the vehicle and began running.

¶ 19 We are not persuaded otherwise by Kover’s assertions that this

crime was not grave and serious because he did not “actually” rob

the victim and played only a “tangential role in this incident.” The

evidence shows that Kover’s role was integral rather than merely

tangential: he knew what the plan was, he assisted in its execution,

and he did nothing to prevent the robbery or assist the elderly

victim, instead fleeing and placing others at risk. And the knowing

targeting of an at-risk victim elevates the gravity and seriousness of

the offense.

¶ 20 Turning to the harshness of Kover’s sentence for the triggering

offense, we also agree with the district court that Kover’s twelve-

year sentence is not unduly harsh. The presumptive range for

Kover’s class 5 felony was one to three years imprisonment. § 18-

1.3-401(1)(a)(V)(A), C.R.S. 2025. But when, as here, a defendant is

on parole at the time of the offense, the sentencing range is

9 increased to two to six years. § 18-1.3-401(8)(a)(II). The habitual

criminal statute required a sentence of four times the maximum in

the presumptive range. See § 18-1.3-801(2)(a)(I)(A), C.R.S. 2025.

Thus, twelve years represents only twice the maximum sentence

Kover could have received even without his habitual criminal

adjudication. In addition, the district court appropriately noted

Kover’s history of felony recidivism as a legitimate consideration in

determining whether his sentence raised an inference of gross

disproportionality. See Wells-Yates, ¶ 23; see also People v. Loris,

2018 COA 101, ¶ 30 (considering a defendant’s “persistent

disrespect and disregard for the rule of law” in making a

proportionality determination (citation omitted)). Indeed, Colorado

has approved punishing more harshly those who commit repeated

criminal acts as a “legitimate penological goal.” Wells-Yates, ¶ 22.

Further, the record reflects that Kover is parole eligible, which may

very well reduce his actual period of confinement. Id. at ¶ 14.

¶ 21 Under these circumstances, we cannot conclude that Kover’s

sentence raises an inference of gross disproportionality.

Accordingly, we perceive no error in the district court’s

10 determination that he is not entitled to an extended proportionality

review.

III. Kover Was Not Entitled to a Hearing

¶ 22 Kover also contends that the district court erred by failing to

hold a hearing on his proportionality claim to give him the

opportunity to “develop and elucidate” additional facts underlying

his triggering and predicate offenses.2

¶ 23 Kover now argues that, at a hearing, he would have been able

to introduce evidence that his triggering offense “was a setup

orchestrated . . . in a cynical effort to bait him into a violent

confrontation,” and that he was “also something of a victim”

because his ex-girlfriend “set in motion the events that led to this

tragedy.” But he did not make these allegations in any of his

postconviction filings. And in direct response to the prosecution’s

proportionality arguments, Kover didn’t dispute any of the facts

2 Kover requested a hearing on his ineffective assistance of counsel

claims. But when the court agreed to conduct a proportionality review and allowed the parties to brief proportionality, Kover did not request a hearing; rather, he responded to the prosecution’s proportionality arguments.

11 that the prosecution set forth regarding the triggering offense or the

predicate offense that the district court deemed grave and serious.

¶ 24 For these reasons, we cannot conclude that the district court

erred by declining to grant a hearing. See Crim. P. 35(c)(3)(IV); see

also White v. Denv. Dist. Ct., 766 P.2d 632, 635 (Colo. 1988) (to

warrant a hearing on a Crim. P. 35(c) claim, a defendant must

allege facts which, if true, would entitle him to the requested relief).

IV. The Reply Brief

¶ 25 For the first time in his reply brief, Kover asserts that his

habitual criminal sentence is constitutionally infirm because, in the

adjudication phase, his habitual criminal counts were not

submitted to a jury for a determination that the predicate offenses

involved charges arising out of separate and distinct criminal

episodes. He relies on People v. Gregg, 2025 CO 57, which recently

held, among other things, that the question of whether prior

convictions arose from separate and distinct criminal episodes

requires a jury finding. Id. at ¶ 24.

¶ 26 Kover acknowledges that this court does not address issues

raised “for the first time in a reply brief.” People v. Owens, 2024 CO

10, ¶ 90. But he asserts that we should do so here because

12 (1) Gregg was not announced until after he filed his opening brief;

(2) there is a strong likelihood that Gregg will not be applied

retroactively to cases on collateral review; and (3) any effort to file a

new postconviction motion challenging his habitual criminal

sentence in light of Gregg will “almost certainly run up against” the

procedural bars governing postconviction motions.

¶ 27 As we understand it, Kover cites to Griffith v. Kentucky, 479

U.S. 314 (1987), for the proposition that we should address his new

constitutional claim now because new rules of criminal law apply to

“all cases . . . pending on direct review or not yet final.” Id. at 328.

But this appeal is not before us on direct review. Rather, Kover’s

direct review concluded and his conviction became final when the

mandate issued in Kover I. This appeal is a collateral review, the

very type of proceeding to which Kover concedes “a strong

likelihood” exists “that Gregg will not be applied.” Further, Gregg

applies Erlinger v. United States, 602 U.S. 821 (2024), which was

announced nearly a year before Kover filed his opening brief in this

appeal. He offers no reason why he couldn’t rely on Erlinger to

advance the constitutional argument he asserts for the first time in

reply.

13 ¶ 28 Given this posture, we decline to address the issue he raises

for the first time in his reply.

V. Disposition

¶ 29 We affirm the order.

JUDGE MOULTRIE and JUDGE BERNARD concur.