22CA2112 Peo v Fleeks 06-12-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA2112 Adams County District Court No. 16CR1046 Honorable Patrick H. Pugh, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
A’Jueal Fleeks,
Defendant-Appellant.
ORDER AFFIRMED
Division II Opinion by JUDGE SCHUTZ Fox and Harris, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 12, 2025
Philip J. Weiser, Attorney General, Patrick A. Withers, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Patrick R. Henson, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, A’Jueal1 Fleeks, appeals the postconviction court’s
order denying his Crim P. 35(c) motion. We affirm the order.
I. Background and Procedural History
A. Incident, Trial, and Conviction
¶2 To assist the reader in understanding the relationships
between the individuals involved in this matter, we include the
following table:
Name Relationship to Others
Raymond Marquez Stormee Duran’s former boyfriend, and Bissell’s former roommate
Stormee Duran Fleeks’s romantic interest at the time of the incident and potential alibi witness
Marquez’s on-again-off again romantic partner and coparent Ian Bissell Marquez’s former roommate
Fleeks’s burglary victim Leslie Blea Bissell’s romantic partner
Fleeks’s burglary victim
1 The appellate briefs stylize Fleeks’s first name as, “Ajueal,” but in
his written correspondence, his name is stylized as, “A’Jueal,” so we defer to his written preference.
1 ¶3 Fleeks’s conviction is supported by the following evidence
presented at trial:
¶4 On March 5, 2016, at around 2 a.m., Fleeks, armed with a
handgun, showed up at Bissell’s and Blea’s residence looking for
Bissell’s former roommate, Marquez. Neither Blea nor Bissell had
met Fleeks before this incident. Bissell and Blea told Fleeks that
Marquez no longer lived there, but Fleeks forced his way into the
residence holding Bissell and Blea at gunpoint.
¶5 Fleeks proceeded to search the home. When he arrived at a
bedroom, Blea told him not to enter because her child was the only
person in there. Fleeks ignored her, opened the bedroom door and
turned on the light, at which point Blea ran into the bedroom and
laid on top of the child to protect him. Blea stared at Fleeks’s face
in the light, while shielding her child.
¶6 Fleeks left the bedroom and argued with Bissell in the living
room. Blea could still hear and observe what was happening. The
argument escalated and Fleeks repeatedly punched Bissell in the
head. Bissell offered to call Marquez to assuage Fleeks.
¶7 Bissell located Marquez’s phone number. Fleeks called
Marquez and had a seven-to-ten-minute conversation in which he
2 referred to himself as “Dolla2” and stated, “I heard you’re going to
my girl’s school . . . you keep fucking with my girl.” After the
conversation, Fleeks left their home.
¶8 Police arrived on scene shortly thereafter. Blea provided the
officers with a general description of Fleeks including that he wore a
red hat with a white “W” on it.
¶9 Later that same day, Blea, Bissell, and Marquez had a
conversation about the burglary, from which Blea learned that
Fleeks’s “girl” was Duran. After the conversation, Blea reviewed
Marquez’s social media contacts and located Duran’s social media
account. While reviewing Duran’s account, Blea observed Fleeks
wearing the same hat that he wore during the burglary. After
reviewing Duran’s account, Blea contacted a detective and told him
that she recognized Fleeks. Detectives then looked at the profile
picture and matched it to the description that Blea had provided to
law enforcement, as summarized in the initial police report.
¶ 10 Police soon arrested Fleeks, and Blea later identified Fleeks in
a photo lineup. The prosecution charged Fleeks with eight counts,
2 Some portions of the record spell the alleged nickname as “Dollar.”
3 including burglary, menacing, criminal trespass, possession of a
weapon by a previous offender, third degree assault, and child
abuse.
¶ 11 After Fleeks’s arrest, Duran approached trial counsel and told
them that she could provide an alibi for Fleeks’s whereabouts on
the night of the burglary. Trial counsel endorsed Duran as a
witness, but did not call her to testify and did not request an alibi
theory of the case instruction.
¶ 12 After a three-day trial, the jury convicted Fleeks on all counts
except the child abuse charge. The trial court sentenced him to
concurrent prison sentences with a controlling term of fifteen years.
B. First Appeal and Rule 35(c) Hearing
¶ 13 Fleeks’s private appellate counsel directly appealed the
convictions and in 2018, a division of this court affirmed, but
remanded the matter to the trial court to correct the mittimus. See
People v. Fleeks, (Colo. App. 17CA0241, Oct. 18, 2018) (not
published pursuant to C.A.R. 35(e)) (Fleeks I). The mandate issued
in December 2018. Appellate counsel took no subsequent actions
in this case.
4 ¶ 14 In March 2020, Fleeks, acting pro se, moved for postconviction
relief under Crim P. 35(c) alleging that trial counsel and appellate
counsel were ineffective. In June, the postconviction court
appointed Alternate Defense Counsel (ADC) to represent Fleeks
after the public defender’s office conflicted off the matter. ADC
supplemented Fleeks’s motion.
¶ 15 Fleeks claimed that his trial counsel was ineffective by (1)
failing to give notice of and present an alibi defense; (2) making
certain promises — and assuming a burden of proof the defense
could not satisfy — during opening statements; (3) allowing a
recording of a jail phone call to be admitted in which Fleeks refers
to himself as “Dolla” rather than stipulating that he used the
nickname; and (4) failing to ask for an alibi theory of the case
instruction. Fleeks also claimed that, because of counsel’s failures,
he did not knowingly or voluntarily waive his right to testify.
¶ 16 Fleeks claimed his appellate counsel was ineffective by failing
to advise him of his right to seek sentence reconsideration under
Crim. P. 35(b) upon the issuance of the mandate in Fleeks I. In
April 2022, the postconviction court granted a hearing to determine
whether trial counsel was ineffective for failing to preserve,
5 investigate, and present evidence of an alibi defense through
Duran’s testimony (the alibi defense). The court summarily denied
Fleeks’s other claims.
¶ 17 In September, the postconviction court held an evidentiary
hearing at which it heard testimony from Duran. After considering
the evidence presented, the court found that trial counsel acted
below the applicable standard by failing to pursue the alibi defense.
¶ 18 However, the court also found that Fleeks’s ineffective
assistance of counsel claim ultimately failed because he did not
prove the result of the trial would have been different even if the
alibi defense had been presented. Thus, the court rejected the
claim because Fleeks failed to demonstrate that prejudice resulted
from trial counsel’s deficient performance.
¶ 19 In support of its conclusion that Fleeks failed to demonstrate
prejudice, the court noted that Duran’s testimony at the Rule 35(c)
hearing had some timeline inconsistencies, including that they
ordered pizza around 11 p.m. but did not go to bed until around 4
a.m., which left a substantial gap of unaccounted for time.
Additionally, Duran testified that Fleeks was hostile toward
Marquez due to Marquez’s alleged abusive conduct toward Duran.
6 The court reasoned that if Duran had been called to testify, this
evidence may have been used to both impeach her testimony and to
suggest that Fleeks had a motive for the burglary.
¶ 20 The court found that even if the alibi defense had been
introduced, there was sufficient evidence from which the jury could
have still convicted Fleeks, including:
• Blea’s and Bissell’s trial testimony that Fleeks committed
the offense;
• Blea’s general description of Fleeks’s physical
characteristics immediately after the crime;
• Blea’s ability to identify Fleeks by the social media
pictures in which he was wearing the same hat that was
worn during the burglary;
• Blea’s ability to identify Fleeks in a subsequent photo
lineup; and
• Blea’s knowledge of facts, such as referring to himself as
Dolla, that she would not have known had the incident
not occurred.
¶ 21 Based on these findings, the court found that Fleeks suffered
no prejudice because there was still sufficient evidence for a
7 reasonable jury to conclude he was guilty of the subject offenses.
The court therefore denied the claims predicated on the failure to
present the alibi defense.
II. Issues On Appeal
A. Applicable Law
1. Standard of Review and Postconviction Relief Under Rule 35(c)
¶ 22 Summary denial of a Crim. P. 35 motion is “appropriate if the
claims raise only an issue of law, or if the allegations, even if true,
do not provide a basis for relief.” People v. McGlaughlin, 2018 COA
114, ¶ 24 (quoting People v. Venzor, 121 P.3d 260, 262 (Colo. App.
2005)). We review de novo a postconviction court’s denial of a Crim.
P. 35(c) motion without a hearing. Id. at ¶ 25.
¶ 23 If a postconviction court enters an order addressing the merits
of a Rule 35(c) claim after an evidentiary hearing, we review the
findings for an abuse of discretion. People v. Huggins, 2019 COA
116, ¶ 28. A court abuses its discretion if its decision is manifestly
arbitrary, unreasonable, or unfair, or is based on an erroneous
understanding or application of the law. Id.
¶ 24 A claim of ineffective assistance of counsel presents a mixed
question of fact and law. People v. Sharp, 2019 COA 133, ¶ 12. We
8 defer to the postconviction court’s factual findings if they have
record support, but we review any legal conclusions — including
the court’s determinations on Strickland’s performance and
prejudice prongs — de novo. Id.
¶ 25 We may affirm the denial of a postconviction motion for any
reason supported by the record, even if the rationale was not
expressly relied on by the postconviction court. See People v.
Taylor, 2018 COA 175, ¶ 8.
2. Sentence Reductions under Crim P. 35(b)
¶ 26 A defendant may seek a sentence reduction under Crim. P.
35(b) within eighteen weeks from the entry of “any order or
judgment of the appellate court denying review or having the effect
of upholding a judgment of conviction or sentence.” Crim. P. 35(b).
After considering the motion and any supporting documents, the
court may summarily deny the motion or reduce the sentence. The
decision whether to grant a Rule 35(b) motion is entrusted to the
court’s sound discretion. People v. Dunlap, 36 P.3d 778, 780 (Colo.
2001). In some circumstances, defense counsel’s failure to pursue
a Rule 35(b) motion may constitute ineffective assistance. People v.
Dunlap, 124 P.3d 780, 798 (Colo. App. 2004) (emphasis added).
9 3. Ineffective Assistance of Counsel
¶ 27 To prevail on an ineffective assistance of counsel claim, a
defendant must prove counsel’s performance was deficient and that
the deficient performance prejudiced the defendant. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To establish defense
counsel’s deficient performance, a defendant must prove that
counsel’s conduct fell outside the wide range of professionally
competent representation. Id. at 690; People v. Sherman, 172 P.3d
911, 913 (Colo. App. 2006). To establish prejudice, the defendant
must show that “but for” counsel’s performance, the outcome would
have been different. Strickland, 466 U.S. at 694. A claim must be
denied if a defendant fails to prove either deficient performance or
prejudice. Id.; People v. Chipman, 2015 COA 142, ¶ 32.
¶ 28 The Strickland test is the appropriate measure for ineffective
assistance by appellate counsel. Silva v. People, 156 P.3d 1164,
1169 (Colo. 2007). A claim of ineffective assistance of counsel may
stem from a multitude of allegations, including — as relevant here
— that trial counsel failed to present the case effectively by
overlooking a meritorious defense that was more likely to succeed
than the defense presented. People v. Trujillo, 169 P.3d 235, 238
10 (Colo. App. 2007). However, counsel is not required to present
every nonfrivolous issue a defendant desires to raise. Id. Indeed, a
central role of appellate counsel is to focus on the issues that
present the best chance of achieving success, rather than raising
every potential error that arguably occurred.
B. Analysis of the Alibi Defense
1. Additional Facts
¶ 29 Shortly after Fleeks’s arrest, Duran approached trial counsel
and told them that she could provide an alibi for Fleeks’s
whereabouts because she was with him at the time of the burglary.
She also provided trial counsel with screenshots of a receipt of the
pizza that they purchased and a written statement in which she
claimed that they were together on the night of the burglary. Trial
counsel endorsed Duran as a witness but did not ultimately call her
to testify or request an alibi instruction.
¶ 30 Trial counsel’s theory of defense was that Marquez and Bissell
“concocted a story to get back at Duran” as revenge from a
perceived wrong that Duran perpetrated against Marquez. Trial
counsel told the jury that Marquez was angry with Duran because
she had accused him of assaulting her, and that Marquez was also
11 angry with Fleeks because of his relationship with Duran. So,
defense counsel argued, Marquez conspired with his former friend
and former roommate, Bissell, to stage the burglary and assault.
Counsel forecasted in opening statement that the evidence would
demonstrate that Bissell’s and Blea’s accounts of the crime and
their identification of Fleeks were simply not credible.
¶ 31 To support this contention, the defense presented evidence
challenging the credibility of Bissell’s and Blea’s accounts of the
story including timeline inconsistencies, discrepancies in how they
initially recounted the burglary, and deficiencies in the police
investigation.
¶ 32 In 2022, at the postconviction hearing, Duran stated that if
she had been called as a trial witness she would have testified that
(1) Marquez had previously threatened to ruin her life if she ended
their romantic relationship; (2) the night of the alleged burglary was
particularly memorable to her because that was when she and
Fleeks consummated their romantic relationship and because the
pizza delivery person repeatedly called her that night because he
was lost; and (3) she and Fleeks were together until around 4 a.m.
on the night of the burglary.
12 2. The Parties’ Contentions
¶ 33 Fleeks contends that he was prejudiced by the failure to call
Duran because she would have supported his contention that the
alleged crimes were staged and he could not have committed them
because he was with her the entire evening.
¶ 34 The People argue that the failure to request an alibi theory of
the case instruction was not prejudicial because the alibi theory
was merely in service of the overarching theory that Fleeks was set
up, which was adequately communicated to the jury. Moreover,
they argue, the alibi defense could have undermined the presented
defense because Duran’s testimony would have been effectively
negated by inconsistencies in her timeline, her past conflicts with
Marquez, and her desire to help Fleeks. Given these dynamics,
coupled with the strength of Bissell’s and Blea’s testimony, the
People argue that the result of the trial would not have been
different even if Duran had testified.
3. Analysis
¶ 35 In assessing the prejudice prong of the Strickland test, the
postconviction court framed its analysis by asking whether the
evidence admitted at trial was sufficient to convict Fleeks even if the
13 alibi defense had been presented. Neither the postconviction court
nor the parties point us to case law applying a sufficiency of the
evidence test in this context. Although the sufficiency of the
evidence paradigm may be a useful starting point, we tether our
analysis to the more traditional formulation of this inquiry —
whether there is a “reasonable probability” that but for trial
counsel’s deficient performance, the “result of the proceeding would
have been different.” Davis v. People, 871 P.2d 769, 772 (Colo.
1994) (quoting Strickland, 466 U.S. at 694). A reasonable
probability is “a probability sufficient to undermine confidence in
the outcome.” Id.
¶ 36 In finding no prejudice caused by the omission of the alibi
evidence, the court pointed to the strength of the People’s evidence,
including the swelling, bruising, and dried blood on Bissell’s face
when police arrived on scene, Blea’s initial description that matched
Fleeks, Blea’s subsequent identification of Fleeks in photos from
Duran’s social media, and Blea’s testimony that she heard Fleeks
refer to himself as Dolla and the subsequent phone recording in
which Fleeks referred to himself by the same nickname.
14 ¶ 37 While acknowledging that Duran’s testimony may have
provided some benefit to the defense’s theory of the case, the
postconviction court also reasoned that Duran’s testimony had
some problems, including that the pizza receipt was in Duran’s
name only and was timestamped near 11 p.m., which would not
have undermined Bissell’s and Blea’s account that the incident
occurred around 2 a.m. Moreover, the jury may have concluded
that the complicated relationship between Duran, Marquez, and
Fleeks, including Duran’s back-and-forth romantic relationship
with Marquez, provided her with a motive to fabricate the alibi
testimony.
¶ 38 Given the strength of Bissell’s and Blea’s testimony, and the
vulnerability of Duran’s alibi evidence, we cannot say that the
postconviction court erred by concluding that the result of the trial
would not have been different even if the alibi defense had been
properly preserved and presented.
C. Remaining Trial Counsel Claims
¶ 39 Fleeks also appeals the postconviction court’s summary
denials of his claims that trial counsel was ineffective in three
additional ways: first, by erroneously shifting the burden during
15 opening statements; second, by not preparing Fleeks to testify and
rendering his ability to testify impracticable by presenting an
inconsistent defense, thus effectively depriving him of the ability to
make a knowing and voluntary waiver of his right to testify; and
finally, by failing to stipulate to his nickname, which resulted in the
prosecution playing a jail recording, in which he refers to himself as
Dolla. We address each contention in turn.
¶ 40 As it relates to the burden of proof, the postconviction court
summarily denied Fleeks’s claim that trial counsel shifted the
burden of proof to the defense by saying during opening statements
that it would produce evidence of a setup. The court found that
assertions that the allegations were false, the witnesses were
biased, and that the police department failed to investigate claims
was not tantamount to shifting the burden of proof. We agree.
Moreover, trial counsel delivered on its assertion that it would
provide evidence that Bissell’s and Blea’s testimony was
inconsistent and evolving. Thus, we discern no error in the court’s
summary denial of this claim.
¶ 41 We also conclude that the court did not err by summarily
denying Fleeks’s claim that trial counsel’s conduct deprived him of
16 the ability to make a knowing, voluntary, and intelligent waiver of
his right to testify. The trial court fully advised Fleeks of his right
to testify. And after the advisement, Fleeks confirmed that he was
making a personal, knowing, and voluntary decision to waive his
right to testify. Seconds later, trial counsel stated that they would
present no additional evidence. Despite his appellate arguments,
Fleeks did not protest the decision not to call Duran. Nor did he
inform the court that the absence of Duran’s testimony impacted
his waiver of the right to testify. Given these circumstances, the
postconviction court did not err by summarily denying this claim.
¶ 42 Finally, we reject Fleeks’s contention that trial counsel was
ineffective by failing to stipulate that Fleeks used the nickname
Dolla. Trial counsel filed a pretrial motion to suppress the video of
the phone call, which was denied. Counsel also obtained a
stipulation from the prosecution that only a brief sound recording of
the conversation would be admitted. Moreover, Fleeks offered no
evidence to suggest that the prosecution would have accepted a
stipulation without introducing some portion of the recording. See
People v. Morales, 2012 COA 2, ¶ 9 (“The prosecution is generally
entitled to prove the elements of its case against a defendant by
17 evidence of its own choice, and a defendant ‘may not stipulate or
admit his way out of the full evidentiary force of the case as the
[prosecution] chooses to present it.’”) (quoting Old Chief v. United
States, 519 U.S. 172, 186-87 (1997)). Thus, we discern no
deficiency in trial counsel’s performance on this issue. Moreover,
as the postconviction court noted, the phone recording was very
short and there was substantial evidence identifying Fleeks as the
perpetrator. So, we cannot say that the postconviction court erred
by summarily denying this claim.
D. Appellate Counsel’s Alleged Ineffectiveness
¶ 43 Finally, Fleeks contends that appellate counsel was ineffective
because they failed to inform him of his right to move for a sentence
reduction under Crim. P. 35(b). Under Rule 35(b), a defendant may
seek a sentence reduction within eighteen weeks after the entry of
“any order or judgment of the appellate court denying review or
having the effect of upholding a judgment of conviction or
sentence.” Crim. P. 35(b). Fleeks contends that appellate counsel’s
failure to take any subsequent action after the Fleeks I mandate
was issued was ineffective assistance.
18 ¶ 44 However, this claim also fails because Fleeks does not allege
prejudice. Fleeks did not allege in his motion, and does not argue
on appeal, that he had new or mitigating evidence to present in
support of a request for a sentence reduction. Indeed, neither in
his motion nor on appeal does Fleeks contend that, if the motion
had been filed, there was a reasonable probability that it would
have been granted and his sentence would have been reduced.
Therefore, the postconviction court did not err by summarily
denying this claim.
III. Disposition
¶ 45 The postconviction court’s order is affirmed.
JUDGE FOX and JUDGE HARRIS concur.