23CA0814 Peo v Jackson 07-11-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0814
Adams County District Court No. 08CR3612
Honorable Kyle Seedorf, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Joseph D. Jackson,
Defendant-Appellant.
ORDER AFFIRMED
Division VI
Opinion by JUDGE SCHUTZ
Lipinsky and Martinez*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 11, 2024
Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Joseph D. Jackson, Pro Se
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
1
¶ 1 Defendant, Joseph D. Jackson, appeals the postconviction
court’s order denying his Crim. P. 35(a) motion. He claims that his
consecutive sentences are illegal under section 18-1-408(3), C.R.S.
2023, because they are based on offenses that he asserts occurred
in one criminal episode against a single victim. We disagree, and
we affirm the order.
¶ 2 According to the evidence presented at trial, Jackson
participated in the following series of acts: (1) beating a victim in a
bathtub with a gun; (2) transporting the bound victim in a van to a
remote location; (3) threatening the victim with a sword while
demanding that he remove his clothes; and (4) striking the victim
again and leaving him in a snowbank on the side of a road. See
People v. Jackson, slip op. at 1-2 (Colo. App. No. 10CA1419, Feb.
16, 2012) (not published pursuant to C.A.R. 35(f)) (Jackson I). A
jury found Jackson guilty of first degree assault, second degree
kidnapping, aggravated robbery, reckless endangerment, conspiracy
to commit aggravated robbery, conspiracy to commit second degree
kidnapping, and conspiracy to commit reckless endangerment. The
district court found extraordinary aggravating circumstances,
merged the conspiracy counts with the substantive counts, and
2
sentenced Jackson to a total of sixty‑eight years in the custody of
the Department of Corrections (DOC).
¶ 3 Jackson’s controlling sentences — (1) thirty-two years in the
DOC for class 3 felony first degree assault and (2) thirty-six years in
the DOC for class 2 felony second degree kidnapping — are each
authorized by law. See § 18-3-202(1)(a), C.R.S. 2023 (first degree
assault); § 18-3-302(1), (3), C.R.S. 2023 (second degree kidnapping);
see also § 18-1.3-401(1)(a)(V)(A), (10)(a), C.R.S. 2023 (presumptive
sentencing ranges; extraordinary risk crimes); § 18-1.3-406(1)(a),
(2)(a)(II)(C), (D), C.R.S. 2023 (sentences for crimes of violence).
¶ 4 On direct appeal, Jackson challenged the sentencing court’s
decision that these sentences should run consecutively. A division
of this court concluded that the sentencing court had not abused
its discretion. Jackson I, slip op. at 14-15. The division determined
that “the evidence supporting the first degree assault conviction
was independent of the evidence supporting the second degree
kidnapping conviction.” Id. at 15. We agree because the evidence
showing that Jackson struck the victim in a bathtub (causing a
brain bleed) is distinct from the evidence showing that he
transported the victim against his will in a van.
3
¶ 5 When a defendant is convicted of multiple counts committed
against a single victim, section 18-1-408(3) requires concurrent
sentencing only if (1) the counts are based on the same act or series
of acts arising from the same criminal episode, and (2) the evidence
supporting the counts is identical. See Juhl v. People, 172 P.3d
896, 901 (Colo. 2007). “The mere fact that the offenses took place
during one continuous criminal episode does not establish that they
were supported by identical evidence.” People v. Jurado, 30 P.3d
769, 773 (Colo. App. 2001).
¶ 6 Because Jackson’s offenses are not supported by identical
evidence, his consecutive sentences are legal. Accordingly, the
postconviction court’s order is affirmed.
JUDGE LIPINSKY and JUSTICE MARTINEZ concur.
