24CA2092 Peo v McDonald 10-23-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA2092 Adams County District Court No. 23CR1270 Honorable Sean Finn, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jesse Durden McDonald II,
Defendant-Appellant.
ORDERS AFFIRMED
Division III Opinion by JUDGE LIPINSKY Dunn and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 23, 2025
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Jesse Durden McDonald II, Pro Se ¶1 Jesse Durden McDonald II appeals the postconviction court’s
orders denying his Crim. P. 35(b) and Crim. P. 35(c) motions
without a hearing. We affirm.
I. Background
¶2 The prosecution charged McDonald with second degree
assault of an at-risk victim, robbery, and two counts of first degree
aggravated motor vehicle theft with two or more prior convictions.
McDonald agreed to plead guilty to two added counts — second
degree assault and first degree motor vehicle theft — in exchange
for dismissal of the original charges. In October 2023, McDonald
entered a guilty plea, and the district court sentenced him to nine
and a half years in the custody of the Department of Corrections.
¶3 More than one year later, McDonald filed a Crim. P. 35(b)
motion in which he sought a sentence reduction. In addition, in the
motion, McDonald asked the postconviction court to provide him
with court-mandated drug and mental health treatment. The court
denied the motion, finding that McDonald’s sentence was
appropriate “based on the conduct here and [his] criminal history.”
¶4 Together with his Crim. P. 35(b) motion, McDonald filed a
Crim. P. 35(c) motion, in which he asserted that (1) his convictions
1 should be overturned because they were based on “flimsy hearsay”
and (2) his attorney was ineffective because the attorney used “fear
tactics” to force him to enter a guilty plea. The postconviction court
denied McDonald’s Crim. P. 35(c) motion after finding that he
“fail[ed] to state factual grounds upon which the motion could be
granted.”
II. The Crim. P. 35(b) Motion
¶5 McDonald first asserts that the postconviction court erred by
denying his Crim. P. 35(b) motion. We disagree.
¶6 Under Crim. P. 35(b), a court may reduce a defendant’s
sentence, but only if, as pertinent to this appeal, the defendant
moves for reconsideration of the sentence within 126 days after the
court imposed it. If the defendant fails to file a timely motion for a
sentence reduction, or the court declines to reduce the sentence on
its own motion within the prescribed time period, the court loses
jurisdiction to reduce the defendant’s sentence. People v. Fuqua,
764 P.2d 56, 59 (Colo. 1988).
¶7 In this case, McDonald did not file his Crim. P. 35(b) motion
until more than a year after the trial court sentenced him.
2 Therefore, the motion was untimely, and the postconviction court
was required to deny it for that reason. See id.
¶8 Accordingly, we conclude that the postconviction court did not
err by denying McDonald’s Crim. P. 35(b) motion, albeit on different
grounds from those on which the postconviction court based its
decision. See People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006)
(explaining that an appellate court may affirm the judgment on any
ground supported by the record, even if the court did not address
that ground).
III. The Crim. P. 35(c) Motion
¶9 Second, McDonald contends that the postconviction court
erred by denying his Crim. P. 35(c) motion. We disagree.
¶ 10 We review de novo a postconviction court’s denial of a Crim. P.
35(c) motion without a hearing. People v. Cali, 2020 CO 20, ¶ 14,
459 P.3d 516, 519.
¶ 11 A district court may deny a Crim. P. 35(c) motion without a
hearing if the motion, files, and record clearly establish that the
allegations in the defendant’s motion do not warrant postconviction
relief. Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). This
standard is satisfied if (1) the defendant’s allegations are bare and
3 conclusory; (2) even if true, they do not warrant postconviction
relief; or (3) the record directly refutes the defendant’s claims.
People v. Duran, 2015 COA 141, ¶ 9, 382 P.3d 1237, 1239.
¶ 12 To succeed on an ineffective assistance claim, a defendant
must establish that (1) counsel’s performance was deficient,
meaning that it fell below an objective standard of reasonableness;
and (2) counsel’s deficient performance prejudiced the defendant,
meaning there is a reasonable probability that, but for counsel’s
deficient performance, the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984);
Dunlap v. People, 173 P.3d 1054, 1062-63 (Colo. 2007). A
postconviction court may reject an ineffective assistance claim if the
defendant fails to demonstrate either deficient performance or
prejudice. See People v. Aguilar, 2012 COA 181, ¶ 9, 317 P.3d
1255, 1257.
¶ 13 McDonald first asserts that the postconviction court erred by
denying his request to vacate his convictions because they were
based on “flimsy hearsay.” However, by pleading guilty, McDonald
waived the right to challenge the facts underlying his convictions.
See People v. Isham, 923 P.2d 190, 195 (Colo. App. 1995) (“[A]
4 defendant has no right to raise a constitutional claim after a guilty
plea when that claim does not relate directly to the adequacy of the
plea.”). The court therefore did not err by denying McDonald’s
challenge to the facts underlying his convictions. See Duran, ¶ 9,
382 P.3d at 1239.
¶ 14 Next, McDonald asserts that the postconviction court erred by
denying his ineffective assistance of counsel claim. Specifically,
McDonald maintains that his attorney coerced him into pleading
guilty by telling him that, “if [he] were to take [his] case to trial, [he]
would lose,” and that McDonald therefore believed he had “no other
choice than to take a plea agreement.”
¶ 15 But even if we accept these allegations as true, we do not see
any basis for granting postconviction relief. McDonald has not
explained how his attorney’s advice was faulty or coercive. See
People v. Adams, 836 P.2d 1045, 1048 (Colo. App. 1991)
(“Competent advice of counsel, albeit stated in strong language,
does not constitute coercion standing alone.”); see also People v.
Riley, 529 P.2d 1312, 1313 (Colo. 1975) (noting that defense
counsel has a “duty to inform his client with complete candor and
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24CA2092 Peo v McDonald 10-23-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA2092 Adams County District Court No. 23CR1270 Honorable Sean Finn, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jesse Durden McDonald II,
Defendant-Appellant.
ORDERS AFFIRMED
Division III Opinion by JUDGE LIPINSKY Dunn and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 23, 2025
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Jesse Durden McDonald II, Pro Se ¶1 Jesse Durden McDonald II appeals the postconviction court’s
orders denying his Crim. P. 35(b) and Crim. P. 35(c) motions
without a hearing. We affirm.
I. Background
¶2 The prosecution charged McDonald with second degree
assault of an at-risk victim, robbery, and two counts of first degree
aggravated motor vehicle theft with two or more prior convictions.
McDonald agreed to plead guilty to two added counts — second
degree assault and first degree motor vehicle theft — in exchange
for dismissal of the original charges. In October 2023, McDonald
entered a guilty plea, and the district court sentenced him to nine
and a half years in the custody of the Department of Corrections.
¶3 More than one year later, McDonald filed a Crim. P. 35(b)
motion in which he sought a sentence reduction. In addition, in the
motion, McDonald asked the postconviction court to provide him
with court-mandated drug and mental health treatment. The court
denied the motion, finding that McDonald’s sentence was
appropriate “based on the conduct here and [his] criminal history.”
¶4 Together with his Crim. P. 35(b) motion, McDonald filed a
Crim. P. 35(c) motion, in which he asserted that (1) his convictions
1 should be overturned because they were based on “flimsy hearsay”
and (2) his attorney was ineffective because the attorney used “fear
tactics” to force him to enter a guilty plea. The postconviction court
denied McDonald’s Crim. P. 35(c) motion after finding that he
“fail[ed] to state factual grounds upon which the motion could be
granted.”
II. The Crim. P. 35(b) Motion
¶5 McDonald first asserts that the postconviction court erred by
denying his Crim. P. 35(b) motion. We disagree.
¶6 Under Crim. P. 35(b), a court may reduce a defendant’s
sentence, but only if, as pertinent to this appeal, the defendant
moves for reconsideration of the sentence within 126 days after the
court imposed it. If the defendant fails to file a timely motion for a
sentence reduction, or the court declines to reduce the sentence on
its own motion within the prescribed time period, the court loses
jurisdiction to reduce the defendant’s sentence. People v. Fuqua,
764 P.2d 56, 59 (Colo. 1988).
¶7 In this case, McDonald did not file his Crim. P. 35(b) motion
until more than a year after the trial court sentenced him.
2 Therefore, the motion was untimely, and the postconviction court
was required to deny it for that reason. See id.
¶8 Accordingly, we conclude that the postconviction court did not
err by denying McDonald’s Crim. P. 35(b) motion, albeit on different
grounds from those on which the postconviction court based its
decision. See People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006)
(explaining that an appellate court may affirm the judgment on any
ground supported by the record, even if the court did not address
that ground).
III. The Crim. P. 35(c) Motion
¶9 Second, McDonald contends that the postconviction court
erred by denying his Crim. P. 35(c) motion. We disagree.
¶ 10 We review de novo a postconviction court’s denial of a Crim. P.
35(c) motion without a hearing. People v. Cali, 2020 CO 20, ¶ 14,
459 P.3d 516, 519.
¶ 11 A district court may deny a Crim. P. 35(c) motion without a
hearing if the motion, files, and record clearly establish that the
allegations in the defendant’s motion do not warrant postconviction
relief. Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). This
standard is satisfied if (1) the defendant’s allegations are bare and
3 conclusory; (2) even if true, they do not warrant postconviction
relief; or (3) the record directly refutes the defendant’s claims.
People v. Duran, 2015 COA 141, ¶ 9, 382 P.3d 1237, 1239.
¶ 12 To succeed on an ineffective assistance claim, a defendant
must establish that (1) counsel’s performance was deficient,
meaning that it fell below an objective standard of reasonableness;
and (2) counsel’s deficient performance prejudiced the defendant,
meaning there is a reasonable probability that, but for counsel’s
deficient performance, the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984);
Dunlap v. People, 173 P.3d 1054, 1062-63 (Colo. 2007). A
postconviction court may reject an ineffective assistance claim if the
defendant fails to demonstrate either deficient performance or
prejudice. See People v. Aguilar, 2012 COA 181, ¶ 9, 317 P.3d
1255, 1257.
¶ 13 McDonald first asserts that the postconviction court erred by
denying his request to vacate his convictions because they were
based on “flimsy hearsay.” However, by pleading guilty, McDonald
waived the right to challenge the facts underlying his convictions.
See People v. Isham, 923 P.2d 190, 195 (Colo. App. 1995) (“[A]
4 defendant has no right to raise a constitutional claim after a guilty
plea when that claim does not relate directly to the adequacy of the
plea.”). The court therefore did not err by denying McDonald’s
challenge to the facts underlying his convictions. See Duran, ¶ 9,
382 P.3d at 1239.
¶ 14 Next, McDonald asserts that the postconviction court erred by
denying his ineffective assistance of counsel claim. Specifically,
McDonald maintains that his attorney coerced him into pleading
guilty by telling him that, “if [he] were to take [his] case to trial, [he]
would lose,” and that McDonald therefore believed he had “no other
choice than to take a plea agreement.”
¶ 15 But even if we accept these allegations as true, we do not see
any basis for granting postconviction relief. McDonald has not
explained how his attorney’s advice was faulty or coercive. See
People v. Adams, 836 P.2d 1045, 1048 (Colo. App. 1991)
(“Competent advice of counsel, albeit stated in strong language,
does not constitute coercion standing alone.”); see also People v.
Riley, 529 P.2d 1312, 1313 (Colo. 1975) (noting that defense
counsel has a “duty to inform his client with complete candor and
to offer his best estimate of the probable outcome of the case”).
5 McDonald therefore has not sufficiently alleged that his attorney
provided deficient performance. See Duran, ¶ 9, 382 P.3d at 1239.
Consequently, we need not address the prejudice prong of his
ineffective assistance argument. See Aguilar, ¶ 9, 317 P.3d at 1257.
¶ 16 Finally, we decline to address arguments that McDonald
asserts in this appeal but that he did not raise in his motion,
including claims that his attorney pressured him into waiving his
right to a preliminary hearing and that he was prejudiced because
his attorney and the judge changed before he was sentenced. See
People v. Goldman, 923 P.2d 374, 375 (Colo. App. 1996)
(“Allegations not raised in a Crim. P. 35(c) motion or during the
hearing on that motion and thus not ruled on by the trial court are
not properly before this court for review.”).
IV. Disposition
¶ 17 The orders are affirmed.
JUDGE DUNN and JUDGE KUHN concur.