23CA0235 Peo v Donis 05-08-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0235 El Paso County District Court No. 07CR1477 Honorable Christopher J. Munch, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
David Donis,
Defendant-Appellant.
ORDERS AFFIRMED
Division VII Opinion by JUDGE JOHNSON Lipinsky and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 8, 2025
Philip J. Weiser, Attorney General, Patrick A. Withers, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Adrienne R. Teodorovic, Alternate Defense Counsel, Windsor, Colorado, for Defendant-Appellant ¶1 Defendant, David Donis (Donis), appeals the postconviction
court’s orders denying his Crim. P. 35(c) motion. He contends that
the court erred by denying his claims of ineffective assistance of his
first postconviction counsel because, at the first postconviction
hearing, counsel failed to assert that (1) trial counsel’s concession
of Donis’ guilt in counsel’s opening statement and trial counsel’s
unwillingness to pursue an innocence defense constituted
structural error; (2) trial counsel failed to ask for a voluntary
intoxication jury instruction; and (3) trial counsel failed to impeach
a witness regarding misidentification. He further alleges that his
first postconviction counsel’s actions constituted cumulative
ineffective assistance. He also contends that his sentence is subject
to an abbreviated proportionality review.
¶2 We conclude that Donis’ first postconviction counsel was not
ineffective and, therefore, affirm the postconviction court’s order
addressing that argument. We also conclude that Donis is barred
from requesting an abbreviated proportionality review and, thus,
affirm the order regarding that matter, as well.
1 I. Background
¶3 A division of this court affirmed Donis’ judgment of conviction
on direct appeal. People v. Donis, (Colo. App. No. 08CA2476, Feb.
3, 2011) (not published pursuant to C.A.R. 35(f)) (Donis I).
¶4 Donis, who rented the basement apartment in the victim’s
house, had purchased a truck from the victim. Donis made
payments toward the purchase of the truck based on a payment
plan. After police suspected that Donis had committed a crime in
the apartment, the victim demanded that Donis move out and
immediately pay the remaining balance owed for the truck. Donis
asked for time to remove his belongings and pay the balance.
¶5 One week later, the victim repossessed the truck and called
Donis’ son to retrieve Donis’ possessions, which the victim had
placed outside the house. Approximately two weeks later, Donis
and a female accomplice drove to the victim’s house, broke in, and
forced the new tenant to carry several bags of the victim’s
belongings out of the house.
¶6 The victim returned shortly thereafter, and Donis and the
woman approached him. Donis and the woman knocked the victim
to the ground and assaulted him, and Donis struck the victim with
2 a pistol. Donis threated to kill the victim if the victim did not return
Donis’ money or give Donis the truck title. The victim offered to
give Donis the title, which the victim said was inside the house.
Still armed with the pistol, Donis continued to hit and threaten the
victim while the two entered the house. After obtaining the title,
Donis demanded that the victim take him to the truck, which was
parked at another location. Donis attempted to force the victim into
a car, but the victim escaped. Donis and the woman fled in the car.
¶7 Donis was convicted by a jury of one count of first degree
kidnapping, two counts of second degree kidnapping, two counts of
first degree burglary, two counts of aggravated robbery, one count
of second degree assault, and one count of felony menacing. He
was also found liable for eight counts of violent-crime sentence
enhancers. Donis was sentenced to life in the custody of the
Department of Corrections without the possibility of parole.
¶8 Following Donis I, Donis filed his first Crim. P. 35(c) motion in
2014. The court appointed postconviction counsel for him. After a
hearing, the court denied all his claims. A division of this court
affirmed the court’s order. People v. Donis, (Colo. App. No.
3 14CA0031, Apr. 9, 2015) (not published pursuant to C.A.R. 35(f))
(Donis II).
¶9 In 2015, Donis filed the pro se Rule 35(c) motion at issue in
this appeal, claiming his first postconviction counsel had rendered
ineffective assistance. The court denied the second Rule 35(c)
motion. As relevant to this appeal, a division of this court vacated a
portion of the court’s denial of Donis’ second Rule 35(c) motion.
See People v. Donis, slip op. at ¶ 19 (Colo. App. No. 16CA0187, Feb.
23, 2017) (not published pursuant to C.A.R. 35(e)) (Donis III). The
Donis III division remanded three claims to the postconviction court:
(1) [whether] postconviction trial and appellate counsel were ineffective in failing to raise Donis’ claim that his trial counsel ‘fabricated [his] confession of guilt’ in opening statements; (2) [whether] postconviction trial counsel was ineffective by inadequately raising trial counsel’s failure to present an alleged misidentification issue to the jury; and (3) [whether] postconviction appellate counsel was ineffective in failing to withdraw previous counsel’s opening brief on appeal.
Id. Donis III instructed the court to provide Donis’ postconviction
trial counsel with an opportunity to respond to the claims and to
conduct further proceedings.
4 ¶ 10 On remand, the court appointed Donis his second
postconviction counsel; counsel filed supplements requesting a
proportionality review of Donis’ sentence. The district court denied
Donis’ motion for a proportionality review.
¶ 11 After conducting an evidentiary hearing in November 2022, the
postconviction court issued a written order denying Donis’ second
Rule 35(c) motion. As part of its order, the court noted that it
addressed additional claims that Donis raised in his second Rule
35(c) motion, even though such claims were beyond Donis III’s
mandate and were likely barred by Crim. P. 35(c)(3)(VI).
II. Abandoned Claims
¶ 12 Donis asserted multiple claims in his second Rule 35(c)
motion, including whether first postconviction counsel was
ineffective by failing to (1) raise the victim’s misidentification of
Donis’ son; (2) raise trial counsel’s acquiescence to the judge’s
proposed jury instruction regarding Donis’ facial injuries sustained
during trial and trial counsel’s failure to move for a longer break in
the trial or a mistrial so the jury would not see the injuries; and (3)
fully investigate Donis’ claims that he was deprived of his right to
represent himself, in that she failed to procure a relevant transcript
5 to support the claim. Donis also asserted that (4) postconviction
counsel was unable to effectively prosecute the ineffectiveness claim
against direct appeal counsel for failure to procure the same
transcript. Because Donis did not assert these claims in his
opening brief, they are deemed abandoned, and we do not address
them. See People v. Brooks, 250 P.3d 771, 772 (Colo. App. 2010).
III. Ineffective Assistance of Counsel
¶ 13 Donis contends that the postconviction court erred by denying
three of his claims of ineffective assistance of first postconviction
counsel. We address and reject each contention.
A. Standard of Review and Applicable Law
¶ 14 Ineffective assistance of counsel claims present a mixed
question of law and fact. People v. Johnson, 2022 COA 2, ¶ 9. We
defer to the postconviction court’s findings of fact if they are
supported by the record, but we review the court’s legal conclusions
de novo. Id.
¶ 15 In Colorado, there is a “limited statutory right to counsel in
post-conviction proceedings.” Silva v. People, 156 P.3d 1164, 1168
(Colo. 2007). Where the right to counsel exists, counsel must meet
6 the standard for effectiveness defined in Strickland v. Washington,
466 U.S. 668 (1984). See Silva, 156 P.3d at 1168-69.
¶ 16 To prevail on an ineffective assistance of counsel claim, a
defendant must prove by a preponderance of the evidence that (1)
defense counsel’s performance was deficient and (2) counsel’s
deficient performance prejudiced the defendant. Strickland, 466
U.S. at 687; see also Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003).
¶ 17 To establish deficient performance, a defendant must prove
that counsel’s performance “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. To establish
prejudice, a defendant must show “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694; see also
People v. Washington, 2014 COA 41, ¶ 23 (stating that a reasonable
probability is a “probability sufficient to undermine confidence in
the outcome”).
¶ 18 The burden is on the defendant to prove both Strickland
prongs. See People v. McDowell, 219 P.3d 332, 339 (Colo. App.
2009). Because both prongs must be satisfied, a court may deny a
Strickland claim by concluding that a defendant has not met one
7 prong without deciding the other. People v. Garcia, 815 P.2d 937,
941 (Colo. 1991).
B. Concession of Guilt and Unwillingness to Pursue Innocence Defense
¶ 19 Donis contends that the postconviction court erred when it
determined that his first postconviction counsel’s performance was
not deficient for not raising trial counsel’s (1) concession of Donis’
guilt of first degree kidnapping in opening statement and (2) failure
to pursue an innocence defense. We discern no error.
1. Standard of Review and Applicable Law
¶ 20 A defendant has a Sixth Amendment right to autonomy over
deciding his defense, which includes the right to either plead guilty
or assert his innocence. McCoy v. Louisiana, 584 U.S. 414, 427
(2018). But defense counsel is “captain of the ship” on issues of
trial strategy, meaning that counsel may choose how to achieve
those objectives presented by the defendant. People v. Bergerud,
223 P.3d 686, 693-94 (Colo. 2010); see also Arko v. People, 183
P.3d 555, 558 (Colo. 2008).
¶ 21 As part of a defendant’s right to enter a plea, defense counsel
may not “concede the defendant’s guilt to a crime over [the client’s]
8 express objection.” Bergerud, 223 P.3d at 699. But a concession
must rise to the level of a judicial admission before it is deemed a
violation of the defendant’s rights. Id. at 700. “A judicial admission
is a formal, deliberate declaration which a party or his attorney
makes in a judicial proceeding for the purpose of dispensing with
proof of formal matters or of facts about which there is no real
dispute.” Id. (quoting People v. Bertagnolli, 861 P.2d 717, 720 (Colo.
1993)). In determining whether a disputed statement made by
defense counsel constitutes a judicial admission, the statement
should be “read as a whole and understood in light of [its] context.”
Id.
¶ 22 Strickland does not apply where a client’s autonomy, rather
than counsel’s competence, is at issue. McCoy, 584 U.S. at 426-27.
Instead, if a defendant’s right to autonomy is violated, the
defendant need not prove prejudice. In other words, a defense
counsel’s violation of the client’s right to autonomy constitutes
structural error, meaning that, if error is found, the defendant is
entitled to automatic reversal. Id.
9 2. Analysis
¶ 23 For Donis to prevail on his concession claim, he must
establish that his first postconviction counsel was ineffective by
failing to raise this issue at the first postconviction hearing. In the
postconviction context, this means that postconviction counsel did
not address a claim that was both meritorious and clearly stronger
than those counsel pursued at the postconviction hearing. Brown
v. Brown, 847 F.3d 502, 514 (7th Cir. 2017) (“A post-conviction
attorney can and should use professional judgment in selecting
which claims and issues to raise, just as [courts] expect from
attorneys in direct appeals.”); cf. People v. Trujillo, 169 P.3d 235,
238 (Colo. App. 2007) (applying a “clearly stronger” standard to
scrutinizing appellate counsel’s issue choice (quoting Ellis v.
Hargett, 302 F.3d 1182, 1189 (10th Cir. 2002))).
¶ 24 Donis claims that he made clear to his two trial counsel —
Marcus Henson (Henson) and Chad Miller (Miller) — that he was
innocent of all charges and that he did not commit any of the
10 charged offenses.1 Nonetheless, Donis contends that, without his
permission, Henson and Miller adopted a “reasonable man” defense.
In addition, Donis argues that, in opening statement, Miller
conceded that Donis committed the elements for felony kidnapping.
In his opening brief, he included a table comparing Miller’s
statements with the elements of felony kidnapping on which the
court instructed the jury:
Miller’s Statements Corresponding Element of Class 1 Felony Kidnapping per Jury Instruction 14 ... 1. “[H]e doesn’t hear back “That the defendant” [after calling the victim]. So what does [Donis] do? “in the state of Colorado, at or He goes over to [the about the date and place victim’s] residence. . . . He charged” shows up, and again, he wants his money back, or the car.” .... 2. “[A neighbor] will be able “That the defendant” to tell [you] that she saw the “in the state of Colorado, at or Cadillac pull up, the about the date and place Cadillac Explorer [sic], Mr. charged” Donis’s car. She saw it
1 Marcus Henson and Chad Miller are now judicial officers. We refer to them by their last names without their titles because their actions in this case were conducted in their capacities as public defenders.
11 pull up, and she heard [D.B.] yelling.” .... 3. “The evidence is going to “enticed or persuaded any show that this meeting, person to go from one place to argument, started in the another” driveway slash garage of [D.B.’s] house . . . and . . . “with intent to force that ended in the driveway person . . . to . . . give up slash garage. . . . Now, in anything of between they went inside value” briefly to get the title of the car. . . . There is your “in order to secure the release of kidnapping evidence.” the person under the .... defendant’s actual or apparent control” 4. “The evidence will show “the person kidnapped suffered you [the victim] has maybe bodily injury as a result of the some bruises and some kidnapping” cuts, maybe there was a third-degree assault, a physical altercation.” .... ¶ 25 The postconviction court concluded that “[t]he trial record and
evidence produced at the hearing clearly demonstrated that [t]rial
counsel did not admit that the [defendant] was guilty of anything.”2
Instead, the postconviction court reasoned that Miller made
“sarcastic remarks” about the charges — not judicial admissions of
2 Because Miller and Henson are judicial officers in the same
judicial district in which Donis was tried, all judges in the Fourth Judicial District recused from presiding over the second postconviction hearing. A senior judge was appointed to preside over this matter.
12 guilt — and that “there is no realistic chance that a jury would have
considered [Miller’s] remarks to constitute an admission of guilt.”
Therefore, the court concluded that first postconviction counsel had
not been ineffective by failing to pursue this claim at the first
postconviction hearing.
¶ 26 We conclude for four reasons that the record supports the
court’s findings.
¶ 27 First, when reading Miller’s opening statement in context, it is
apparent that he made no judicial admission that Donis committed
felony kidnapping. Miller stated:
Good morning. Let’s talk about what really happened. This is not about choices and bad decisions and things like that. It’s about a Ford Explorer. Okay? It’s about a Ford Explorer that [the victim] sold to Mr. Donis.
You will hear not only did Mr. Donis make some payments, he almost fully paid off the Ford Explorer, and he was using the Ford Explorer while he paid it off. Well, [the victim] decides to come over and take that Ford Explorer back. He just comes and takes it.
So what does Mr. Donis do? Well, he calls [the victim], like any of us would do, and says, you give me back my money, or you give me back the car. And if you don’t, the big threat: If you don’t, I’m going to call the police. Exactly what you would do if you purchased a car from
13 somebody. This is about ten days prior to this incident.
Well, he doesn’t hear back. So what does he do? He goes over to [the victim’s] residence. Now this is not the case where some guy creepily shows up at the car dealer’s house. As you heard from the District Attorney, he used to live there, he used to rent a room, so he knows where it is, he knows [the victim] personally. He shows up, and again, he wants his money back, or the car.
Now, you have heard the charges, you have heard what the District Attorneys have decided to charge him with in this case. You have heard the charge of kidnapping. Here is what the evidence is going to show about kidnapping: The evidence is going to show that this meeting, argument, started in the driveway slash garage of [the victim’s] house. And this meeting and argument ended in the driveway slash garage of [the victim’s] house. Now, in between they went inside briefly to get the title of the car, okay? There is your kidnapping evidence. Starts and ends right there in the garage, in the driveway.
So the story [the victim] tells, he will get on the stand and he’ll tell you, is that they jump out of this car, they attack him. They hit him too many times to count. They are hitting him with a gun.
Well, what will the evidence show you? The evidence will show you he has maybe some bruises and some cuts, maybe there was a third-degree assault, a physical altercation. The evidence will absolutely not support
14 somebody being beaten too many times to count by two individuals with a gun.
Don’t take my word for it, you’ll see the photos. Also you will look for corroboration. We can go to the neighbors. Okay? You have the neighbors right next door. That’s the first place [the victim] runs, bangs on their door, tries to get in. Then you will hear, lays in their yard. He wants this to be dramatic. Well, they don’t answer the door, so what does he do?
Then he gets up from their yard, because that hasn’t worked, he walks out in the middle of the road, and he lays down there. Now, mind you, this is after Mr. Donis had already left. We’ll get back to that in one second. He lies down in the middle of the road and starts shouting. Well, that neighbor didn’t work, let’s try to wake the whole neighborhood, let’s see who does work.
Well, [a neighbor] was outside, out on her back patio, which faces that residence. She will be able to tell when you she testifies that she saw the Cadillac pull up, the Cadillac Explorer, Mr. Donis’ car. She saw it pull up, and she heard [the victim] yelling. What she won’t be able to tell you, what the evidence won’t show you, she won’t come in here and say that she heard two males fighting. She won’t come in here and say that she heard a female at all. She won’t even tell you she saw a second male or female. She won’t tell you she heard a gunshot. But again, she’ll tell you she was out back, and that she was — her back yard faces the front of [the victim’s] residence.
Now [the victim] gets in this fight, gets in this argument with Mr. Donis, and then needs to
15 make this scene, because Mr. Donis already told him he was going to call the police, because [the victim] stole his car. That’s why we’re here today. That’s your story.
(Emphasis added.)
¶ 28 Even on the cold record, Miller made no statement that Donis
engaged in any of the conduct charged. Rather, Miller
acknowledged that Donis and the victim had a disagreement over
the truck; the disagreement took place between the driveway and
the garage of the victim’s house (i.e., there was no movement from
one place to another nor was there any force — the third row of
Donis’ table); and the victim, at most, suffered bruises or scrapes
(i.e., no bodily injury as a result of the alleged kidnapping — the
fourth row of Donis’ table).
¶ 29 Second, at the November 2022 evidentiary hearing, Miller and
Henson testified that they used sarcasm as a trial technique to
convince the jury that the prosecution’s evidence was “ridiculous”
or “garbage.” Miller testified that his tone while delivering Donis’
opening statement would have suggested to the jury he was being
sarcastic and that he used sarcasm as a rhetorical device while
trying cases as a public defender. Indeed, he also testified that he
16 “often taught attorneys” in the public defender’s office to use
sarcasm as part of their array of trial tools.
¶ 30 Third, to the extent there is any question about Miller’s tone,
the postconviction court asked its own questions about Miller’s use
of sarcasm. In questioning Miller directly, the court recognized that
its tone while asking Miller questions would not come across on the
record. But the court and Miller had the following exchange:
THE COURT: My tone won’t make it into the record any better than anybody else’s would, but I guess what I’m trying to — I’ve heard this done in two different ways. One would be that’s the kidnapping, in which case it should’ve ended with a question mark. The other would be that’s their kidnapping, which would — would not end in a question mark. Both imply the same thing, which is this isn’t what they say it is, and I was trying to determine whether you knew which of those sorts of intonation you probably would’ve used or whether you would’ve used those words different.
THE WITNESS: I would say closer to the second one, and I’m basing this on my typical style, right, not necessarily the question. The question can be answered either way. You know? This is your kidnapping? And the jury could decide, well, yeah, it is. And that’s not my goal, right? It would be even more sarcastic than your second example, I think. I mean, here’s the kidnapping they want you to
17 believe. This is ridiculous. This is garbage. You know, however you want to phrase it.
¶ 31 The court’s inquiry as to whether Miller used sarcasm by
posing his remarks as a question or as a statement is critical.
Miller testified that he did not want to pose questions to the jury
but instead would make declarative statements in a sarcastic
manner. He reasoned that making a declarative statement with
sarcasm was more powerful because he intended to sway the jury to
his client’s side — i.e., the prosecution’s case was weak or
ridiculous — and not allow the jury to think there was another
answer to his sarcastic question by agreeing with the prosecution.
¶ 32 Although the postconviction court did not make a specific
credibility finding in its order, it impliedly did so by holding that
Miller had used sarcasm as part of his opening statement. See
Dunlap v. People, 173 P.3d 1054, 1061-62 (Colo. 2007) (“The trial
court that presides over a Crim. P. 35(c) hearing is the trier of fact
and bears the responsibility of determining the weight and
credibility to be given to witness testimony.”); see also People v.
Curtis, 681 P.2d 504, 516 (Colo. 1984) (concluding that a district
court “impliedly” discounted the defendant’s statements that his
18 right to testify was voluntarily waived because whether to believe or
not believe a witness is “essentially a question of credibility”).
¶ 33 Fourth and finally, the postconviction court took into
consideration — but rejected — the testimony of Donis’ trial expert,
Nancy Holton (Holton), that sarcasm should never be used in trial.
Holton said, “Don’t use sarcasm in a jury trial because people don’t
know you’re being sarcastic. I think it’s very difficult for lay people
[to] understand that something is being said in a sarcastic tone.”
Holton further testified, “And so, for example, when . . . Miller made
the comments about so [Donis] moved from the garage to the house,
that’s your kidnap, I mean, I suppose he used tone — intonation
that maybe was sarcastic, but some of the jurors might go, oh,
that’s the kidnap.”
¶ 34 But whether counsel’s use of sarcasm might be risky because
it could backfire is not the standard to prove ineffectiveness;
instead, the question is whether counsel’s use of sarcasm in this
case constituted deficient performance such that first
postconviction counsel was deficient by not raising this claim at the
first hearing. At the November 2022 hearing, the court recognized
this distinction when it asked Holton a follow-up question:
19 THE COURT: All right. Next, did your view that sarcasm is always ineffective — I don’t mean ineffective in the sense of not persuasive, but I mean ineffective in the sense that it constitutes substandard performance by an attorney to such a degree as to be ineffective assistance of counsel?
THE WITNESS: No. I think that would be too strong of language to use, your Honor. But I just don’t think it’s a great idea to do because it can be so easily misunderstood. And in this case, I think that the risk of misunderstanding was significant.
¶ 35 Even Holton was unwilling to concede that use of sarcasm by
defense counsel constituted deficient performance; she only said it
poses too much of a risk that the jury will misunderstand it. The
second postconviction court adopted this viewpoint, reasoning that,
“[w]hile [Holton’s] view may be generally sound, the use of sarcasm
by criminal defense counsel is not particularly unusual and is not
constitutionally ineffective.”
¶ 36 Miller and Henson also acknowledged that excessive use of
sarcasm has pitfalls. Miller testified that he cautioned the
attorneys he trained “to be careful with [sarcasm]” because “if you
go too far, the jury might think you’re a jerk and not buy anything
you have to say.” And Henson conceded that, if he were being
20 “honest,” he would “probably say plenty of judges” told him he used
sarcasm “too much.” But again, using sarcasm too much and
using it so that it constitutes deficient performance of counsel are
distinct. The former is, at most, a practice that, according to
Holton, counsel should use sparingly, while the latter renders
counsel’s performance constitutionally ineffective.
¶ 37 Nonetheless, Donis asserts that, even assuming Miller used a
tone sufficiently conveying sarcasm to the jury, Miller did not
comply with Donis’ demand for an innocence defense because Miller
conceded in his opening statement that Donis (1) was present on
the night of the incident; (2) committed one element of kidnapping
by transporting the victim from inside the house to the driveway;
and (3) committed at least third degree assault (by inflicting the
victim’s injuries). Although not directly addressed by the second
postconviction court’s order, we discern no error on these bases as
well. Moody v. People, 159 P.3d 611, 615 (Colo. 2007) (an appellate
court may affirm on any basis supported in the record, even if that
basis is different from the grounds on which the district court
relied).
21 ¶ 38 First, the victim and the victim’s new tenant, David McKinney
(McKinney), identified Donis as being present the night of the
incident. The victim and McKinney identified Donis in a six-
photograph, out-of-court array lineup and made in-court
identifications of him as the person at the victim’s house who
assaulted the victim.
¶ 39 Donis even suggested that he was present at the house on the
night of the incident. Donis admitted during his police interview
with Detective Terry Thrumston (Detective Thrumston) that he went
to retrieve his belongings from outside the victim’s house that night.
Donis also knew the victim had a bump on his head, which the
victim testified he received when Donis hit him with his pistol.
Detective Thrumston testified that, during her interview with him,
she had not mentioned to Donis that the victim had a head injury
before Donis said the victim might have a bump on his head.
Under these circumstances, where Donis’ presence at the scene was
undisputed, trial counsel’s strategy to acknowledge Donis was
present — but to assert that he did not commit any of the charged
conduct — was consistent with Donis’ desire to assert his
innocence.
22 ¶ 40 And even now, Donis never directly disputes or denies that he
was present at the victim’s house on the night of the incident.
When asked by second postconviction counsel how he felt about
Miller’s opening statement, he testified that he was “puzzled”
because “I was hearing him say that I was at a place where
something was occurring that I never said anything like that to
either him or Marcus Henson or anybody else.” He also said that
he believed Miller admitted to the jury that Donis was guilty
because “[Miller’s] telling them it’s not as serious as what the
prosecution is introducing in her opening statement. But
nevertheless, something occurred, but it wasn’t that serious so for
the jurors to not view it as that serious.” In neither instance does
Donis dispute he was never at the victim’s house the night of the
incident; instead, he disagrees with the events Miller stated
occurred that night.
¶ 41 Even during Donis’ cross-examination at the evidentiary
hearing, he did not deny his presence at the victim’s house. Donis
testified that Miller “states that we [Donis and the victim are]
arguing in the driveway; after the argument we go through the
house — he makes clear they go through the house to get the title
23 of the vehicle, and there goes your kidnapping evidence, where he’s
saying it’s not as serious as what the prosecution is really relating
to you, but these — something happened there.” Again, Donis does
not contend that Miller erroneously told the jury Donis was present
that night; rather, his objections focus on Miller’s description of the
events that occurred at the victim’s house.
¶ 42 Second, Miller testified at the November 2022 hearing that he
was trying to convey in his opening statement that the prosecution
could not prove that Donis had “enticed or persuaded” the victim
“to go from one place to another.” Miller said that “kidnapping
required some sort of movement, and that time — the case law has
changed, right — so some sort of movement, however slight, and
that the time increased the danger to the victim.” And because he
said in the opening statement that there was really no movement of
the victim, the evidence would show that Donis could not have
committed kidnapping. Henson’s closing argument was consistent
with the opening statement, as he asserted that the physical
evidence presented by the prosecution did not support “this beating
[of the victim], moving through a house where three people at least
24 are involved in some sort of fight. The physical evidence doesn’t
support that.”
¶ 43 Third and finally, Miller did not concede or admit that Donis
committed any of the charged conduct. We acknowledge that Miller
said to the jury that Donis had, at most, “maybe” committed third
degree assault, but we reject this was conceding any guilt because
Donis was not charged with that offense. More importantly, Miller
again made this statement sarcastically, as the postconviction court
found.
¶ 44 Thus, we conclude that trial counsel correctly acted as
“captain of the ship” by choosing a “reasonable man” defense
strategy. This defense meant acknowledging that Donis was
present but that he did not commit any of the charged offenses.
Instead, under this theory, Donis was acting reasonably because it
was the victim who acted unreasonably by repossessing the truck
when Donis had paid almost the full amount owed. And first
postconviction counsel was “captain of the ship” when choosing
whether to raise the concession claim in the first postconviction
proceedings, knowing that Donis had raised numerous issues and
this claim was not “clearly stronger” than others raised. See
25 Trujillo, 169 P.3d at 238. Thus, the postconviction court did not err
by rejecting the claim that Donis’ first postconviction counsel was
ineffective for not raising the concession/innocence claim.
C. Voluntary Intoxication
¶ 45 Donis next contends that the postconviction court erred by
finding first postconviction counsel did not render ineffective
assistance by failing to raise at the first postconviction hearing that
trial counsel was ineffective by not (1) seeking to voir dire the jury
on drug usage, knowing that Donis and McKinney may have used
cocaine on the night of the incident; (2) retaining an expert to
discuss how cocaine might affect a person’s ability to form specific
intent; and (3) asking for a voluntary intoxication jury instruction.
We discern no error.
1. Applicable Law
¶ 46 Voluntary intoxication is not an affirmative defense completely
absolving a defendant of criminal liability; rather, under appropriate
circumstances, it negates the specific intent necessary to carry out
certain offenses. See § 18-1-804(1), C.R.S. 2024 (“[E]vidence of
intoxication of the defendant may be offered by the defendant when
26 it is relevant to negative the existence of a specific intent if such
intent is an element of the crime charged.”).
¶ 47 A criminal defendant who maintains his innocence may
receive an inconsistent jury instruction on voluntary intoxication,
provided there is a rational basis for the instruction in the
evidentiary record. Brown v. People, 239 P.3d 764, 769 (Colo.
2010). But while a district court may “issue an inconsistent jury
instruction on a lesser included offense,” nothing in the law
“compel[s] it to do so.” Id. Instead, a district court must determine
“whether a rational basis for the requested instruction exists in the
evidentiary record before granting or denying such instruction.” Id.
2. Voir Dire on Drug Usage
¶ 48 Donis contends that because his drug usage was likely to
come in, trial counsel should have conducted voir dire of the jury
on this topic. His main complaint is that his first postconviction
counsel and the second postconviction court erred by focusing
solely on the evidence involving Donis and McKinney’s potential
drug use. But Donis also maintains that the drug evidence
spanned beyond McKinney and included the introduction of Donis’
voicemail he left for the victim referencing drugs the victim had
27 given Donis to sell and testimony about whether Donis and the
victim had done drugs together at the victim’s house.
¶ 49 We acknowledge that the second postconviction court’s
analysis on drug usage was limited to whether McKinney would
testify at trial. McKinney had spoken with defense investigators
and indicated that he and Donis smoked crack cocaine together
before the confrontation between Donis and the victim. But defense
counsel knew before trial that the prosecution could not locate
McKinney. If McKinney did not testify, there would be no testimony
about Donis doing drugs on the night of the incident. McKinney
was not located until mid-trial, and he testified during the second
week of trial. Therefore, the second postconviction court said that it
had been a reasonable trial strategy for defense counsel to avoid
mentioning drug usage during voir dire because McKinney had not
yet been located.
¶ 50 But the drug testimony to which Donis refers — i.e., Donis’
reference in a voicemail to the victim that the victim had given
Donis drugs to sell and Donis and the victim had done drugs in the
house — had come in before McKinney’s testimony and did not
indicate that Donis did drugs on the night of the incident. It was
28 only McKinney who testified about Donis smoking crack cocaine the
night of the incident.
¶ 51 Therefore, while Miller and Henson testified that they knew
that testimony about drugs was likely to be discussed at trial —
regardless of whether McKinney testified — the issue for them was
whether the testimony would focus on Donis doing drugs the night
the altercation with the victim occurred. With this rationale, we
cannot say that trial counsel’s failure to voir dire on drug usage
constituted deficient performance. Therefore, the postconviction
court did not err by finding that first postconviction counsel’s
failure to raise this omission did not constitute ineffective assistant.
3. Retention of an Expert
¶ 52 Donis contends that trial counsel was ineffective by failing to
retain an expert about how drug usage might impair a person’s
ability to form specific intent.
¶ 53 Miller acknowledged that bringing up bad facts like drug
usage might be a reasonable strategy, but he also testified that it
would depend on the circumstances. For example, Miller said, “[I]f
[Donis] used drugs in the past with [the victim], I still don’t want
[Donis] on drugs that day.” He then said, “Because somebody who’s
29 on cocaine is more likely to do something that [the victim]
suggested[,] which is how this case came about[,] [rather] than
somebody who is sober and just trying to get their money or their
truck back.”
¶ 54 Miller further testified that he did not think drug use was
always inculpatory, so he “would always want to get ahead of that
and get out in front of it.” He acknowledged that “if it’s definitely
coming in that [Donis] was on drugs that day,” then he agreed that
he might want to raise his client’s drug usage head-on, but “if it
was some sort of drug use in the past, no, I absolutely would not
have wanted to get into that. I’d want him to be sober, clearheaded,
and a reasonable businessman.”
¶ 55 Holton testified that any time defense counsel knows drug
evidence is going to be introduced at trial, defense counsel should
find out the jurors’ viewpoints in voir dire to assess bias, retain an
expert on the effects of cocaine on a defendant’s ability to form
intent, and ask for the voluntary intoxication instruction. But
because trial counsel did not know for sure whether testimony
would come in about Donis’ drug usage on the night of the incident,
we agree with the second postconviction court that first
30 postconviction counsel was not deficient when she focused less on
these issues at the first hearing.
4. Jury Instruction
¶ 56 Finally, Donis contends that first postconviction counsel was
ineffective by failing to raise that trial counsel did not ask for a
voluntary intoxication jury instruction.
¶ 57 But Donis II already determined that trial counsel was not
ineffective for not pursuing a voluntary intoxication defense. That
division reasoned that trial counsel had a reasonable strategy to
portray Donis as a “reasonable man,” and trial counsel had said
that “the common perception of someone on cocaine is a wild and
crazy person that might go in and pistol whip somebody and drag
him around the house,” which was inconsistent with this defense.
¶ 58 And even though the prosecution stipulated to Holton’s
qualifications as an expert or that her testimony was unrebutted is
irrelevant to whether trial counsel deficiently performed by failing to
request a voluntary intoxication jury instruction. Case law
supports that whether to request a specific jury instruction is
“within the unique competence of defense counsel,” People v.
Villarreal, 231 P.3d 29, 35 (Colo. App. 2009) (quoting Arko, 183
31 P.3d at 559), aff’d on other grounds, 2012 CO 64, and that failing to
ask for a jury instruction that is inconsistent with the theory of
defense does not constitute ineffective assistance of counsel, id.
(concluding that defense counsel was not ineffective for not asking
for a voluntary intoxication instruction when it was inconsistent
with the theory of defense); see also People v. Garner, 2015 COA
174, ¶¶ 66-67, 69 (not seeking a voluntary intoxication instruction
does not overcome the presumption of a “sound trial strategy” when
it was inconsistent with the theory of defense); Pensinger v.
Chappell, 787 F.3d 1014, 1031 (9th Cir. 2015) (“Where counsel
pursues one theory of the defense over another, counsel’s lack of
request for a jury instruction on the alternate theory does not
constitute deficient performance.”); Jackson v. Shanks, 143 F.3d
1313, 1320 (10th Cir. 1998) (“Trial counsel’s decision not to present
inconsistent defense theories does not constitute ineffective
assistance.”).
¶ 59 Miller’s testimony at the second postconviction hearing is
consistent with the case law that, while trial counsel could have
pursued a voluntary intoxication defense and asked for a jury
instruction, he and co-counsel had a “sound trial strategy” that
32 they could not ‘“ride two horses’ at trial” because they would be
saying to the jury, “He didn’t do this, but if he did, he was
intoxicated. That does not make any sense.” See Trujillo, 169 P.3d
at 238.
¶ 60 We also fail to see how first postconviction counsel was
ineffective by failing to raise this issue further in the first hearing
when second postconviction counsel emphasizes Donis’ desire to
maintain his innocence. Although Miller conceded that a voluntary
intoxication instruction could have been an option, we see nothing
in the record where Donis agreed that such a defense and
instruction would not have been contrary to his assertion of
¶ 61 Thus, we conclude that the second postconviction court did
not err when denying that Donis’ first postconviction counsel was
ineffective on this claim.
D. Misidentification of Female Accomplice
¶ 62 Donis contends that the second postconviction court erred by
finding first postconviction counsel was not ineffective when she
failed to raise trial counsel’s deficient performance by not
33 impeaching McKinney for his misidentification of Donis’ alleged
female accomplice.
¶ 63 McKinney testified at trial that Donis had a female accomplice
with him on the night of the incident. It is undisputed that the
police showed McKinney a photo array and McKinney identified as
the female accomplice a woman who was incarcerated at the time of
the incident. As a result, Donis contends that trial counsel had this
information yet failed to impeach McKinney about his
misidentification. And according to Donis, because McKinney was a
crucial prosecution witness, trial counsel was deficient by not using
this impeachment material to attack McKinney’s credibility. The
second postconviction court held that, even though trial counsel
had no tactical reason for not impeaching McKinney with his
misidentification of the female accomplice, the overall cross-
examination of McKinney met the “constitutional standard of
professional adequacy.”
¶ 64 Although not worded as such, we view the postconviction
court’s conclusion on this issue to be a prejudice, rather than
performance, analysis. “Strickland generally requires a showing
that the defendant was prejudiced — that is, that there is a
34 reasonable probability that the result of the proceeding would have
been different but for counsel’s deficient performance.” People v.
Sharp, 2019 COA 133, ¶ 26 (citing Strickland, 466 U.S at 687-88).
¶ 65 Even assuming trial counsel’s performance was deficient by
failing to impeach McKinney on his misidentification, Donis failed to
prove prejudice because he cannot show how further undermining
McKinney’s credibility would have resulted in a different outcome.
See Moody, 159 P.3d at 615 (we may affirm an order on any ground
supported in the record); see also Sharp, ¶ 12 (whether a defendant
has satisfied Strickland’s performance or prejudice prongs are legal
conclusions “to which [an appellate court] do[es] not defer”).
¶ 66 Miller attacked McKinney’s credibility during cross-
examination on a variety of topics, including McKinney’s
relationship with the victim, how much alcohol he consumed the
night of the incident, his inability to remember details about Donis
and his female accomplice, whether Donis reached around and
grabbed a gun from his waistband, and whether McKinney smoked
crack the night of the incident.
¶ 67 Miller drew the jury’s attention to these inconsistencies and
omissions by comparing McKinney’s statement to a police officer’s
35 trial testimony. And in closing argument, Henson used those
inconsistencies in McKinney’s testimony to tell the jury that
McKinney was “not always a truthful guy.”
¶ 68 Accordingly, we conclude that there was no reasonable
probability that impeaching McKinney on the misidentification
issue would have changed the outcome. See People v. Dunlap, 124
P.3d 780, 798 (Colo. App. 2004) (finding failure to impeach witness
did not demonstrate a reasonable probability that the additional
information would have caused a different outcome). Because
Donis has failed to meet his burden of showing both deficient and
prejudicial performance, we discern no error.
E. Cumulative Error
¶ 69 Because we have discerned no errors in the court’s order
denying Donis’ second Rule 35(c) motion, his claim of cumulative
error necessarily fails. See People v. Villa, 240 P.3d 343, 359 (Colo.
App. 2009) (cumulative error analysis is required only when
multiple errors have been identified); see also People v. Walton, 167
P.3d 163, 169 (Colo. App. 2007) (defendant cannot be awarded
relief based on cumulative error where there are not multiple errors
compounded).
36 IV. Sentencing
¶ 70 Donis contends that his sentence is subject to an abbreviated
proportionality review and, therefore, the postconviction court erred
by denying such a review. We disagree.
¶ 71 The Eighth Amendment protects defendants from sentences
that are grossly disproportionate to the crime. Wells-Yates v.
People, 2019 CO 90M, ¶ 5. In that case, our supreme court
clarified four points concerning an abbreviated proportionality
review: (1) “the court must consider each triggering offense and the
predicate offenses together and determine whether, in combination,
they are so lacking in gravity or seriousness as to raise an inference
that the sentence imposed on that triggering offense is grossly
disproportionate”; (2) “in determining the gravity or seriousness of
the triggering offense and the predicate offenses, the court should
consider any relevant legislative amendments enacted after the
dates of those offenses, even if the amendments do not apply
retroactively”; (3) not all narcotics offenses are per se grave or
serious; and (4) “the narcotic offenses of possession and possession
with intent [to distribute] are not per se grave or serious.” Id. at
¶ 2.
37 ¶ 72 Recently, in McDonald v. People, 2024 CO 75, ¶¶ 16, 22-25,
34, our supreme court held that, while Wells-Yates announced
some new rules with respect to how district courts should conduct
abbreviated proportionality reviews, the rules “are procedural, not
substantive,” because they “regulate[] only the manner of
determining the defendant’s culpability.” Id. at ¶ 28, 34 (quoting
Schriro v. Summerlin, 542 U.S. 348, 353 (2004)). Because Wells-
Yates did not announce substantive new rules, its “holdings don’t
apply retroactively to cases on collateral review.” Id. at ¶¶ 16, 34
(noting that “defendants seeking collateral review of their cases after
their convictions are final generally aren’t entitled to retroactive
application of [a] new rule unless the rule” is substantive rather
than procedural).
¶ 73 Based on MacDonald, Donis is not entitled to retroactive
application of Wells-Yates and, thus, the postconviction court did
not err by denying Donis’ request for an abbreviated proportionality
review of his sentence.
V. Conclusion
¶ 74 We affirm the postconviction court’s orders.
JUDGE LIPINSKY and JUDGE MOULTRIE concur.