24CA2149 Peo v Nesterenko 01-15-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA2149 Mesa County District Court No. 21CR1209 Honorable Matthew D. Barrett, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Aleksandr Nesterenko,
Defendant-Appellant.
ORDER AFFIRMED
Division VI Opinion by JUDGE SCHOCK Grove and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 15, 2026
Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Aleksandr Nesterenko, Pro Se ¶1 Defendant, Aleksandr Nesterenko, appeals the order denying
his Crim. P. 35(c) motion without a hearing. We affirm.
I. Background
¶2 Nesterenko was charged with several crimes, including first
degree burglary and attempted first degree assault, for allegedly
breaking into the victims’ house and shooting a gun into the home.
¶3 Nesterenko pleaded guilty to first degree burglary and an
amended count of second degree assault in exchange for dismissal
of the remaining charges.1 In the plea agreement, the parties
agreed that the charges did not require a mandatory prison
sentence. But the written plea advisement provided that if
Nesterenko was incarcerated, he would be subject to an aggravated
maximum sentence of twenty-four years (and a minimum sentence
of eight years) because he was on bond for another felony at the
time of his offense. The district court also explained at the
providency hearing that if it sentenced Nesterenko to prison, the
second degree assault sentence would be for five to sixteen years
under the crime of violence statute, § 18-1.3-406, C.R.S. 2025.
1 Nesterenko also pleaded guilty to felony driving under the
influence as a fourth or subsequent offense in another case.
1 ¶4 Nesterenko asserted at the providency hearing that he was
“blacked out” from alcohol consumption at the time of his offenses
and could not remember what he had done. But he agreed there
was sufficient evidence to prove the offenses beyond a reasonable
doubt. The district court accepted the guilty plea, finding that
Nesterenko had entered it knowingly, intelligently, and voluntarily.
¶5 The court sentenced Nesterenko to concurrent prison
sentences of fifteen years for the first degree burglary and sixteen
years for the second degree assault.
¶6 Nesterenko appealed his convictions, arguing that his guilty
plea was not knowing, voluntary, and intelligent because he had
been misled as to his maximum sentence under the plea agreement.
A division of this court dismissed the appeal, concluding that
Nesterenko’s challenge to his guilty plea was not properly before the
court on direct appeal. People v. Nesterenko, (Colo. App. No.
22CA1253, July 20, 2023) (not published pursuant to C.A.R. 35(e)).
¶7 Nesterenko then filed a timely Crim. P. 35(c) motion for
postconviction relief. He asserted that his counsel had provided
ineffective assistance by failing to conduct an adequate
investigation and by erroneously advising him to plead guilty. He
2 claimed that additional investigation would have proved his
innocence and exposed fraud and governmental misconduct. He
also argued that his plea was not knowing, voluntary, and
intelligent due to the ineffective assistance of counsel and that his
sentence was unconstitutionally disproportionate to his crimes.
¶8 The district court denied the motion without appointing
counsel or conducting a hearing. It concluded that Nesterenko’s
claims of ineffective assistance of counsel were conclusory,
speculative, and contradicted by the record, and that Nesterenko
had failed to sufficiently allege prejudice. For similar reasons, the
court concluded that Nesterenko had not alleged facts sufficient to
overcome the court’s prior finding that the plea was knowing,
voluntary, and intelligent. And it concluded that Nesterenko’s
sentence did not raise an inference of gross disproportionality given
the seriousness of his conduct, his criminal history, the impact on
the victims, the mitigating evidence, and his parole eligibility.
II. Legal Standard and Standard of Review
¶9 A Crim. P. 35(c) motion may be denied without a hearing when
“the motion and the files and record of the case show to the
satisfaction of the court that the defendant is not entitled to relief.”
3 Crim. P. 35(c)(3)(IV). This standard is satisfied if (1) the allegations
are bare and conclusory; (2) the allegations, even if true, do not
warrant relief; or (3) the record directly refutes the defendant’s
claims. People v. Duran, 2025 COA 34, ¶ 15. A defendant need not
set forth evidentiary support for the allegations in the motion but
must assert facts that, if true, would provide a basis for relief.
White v. Denver Dist. Ct., 766 P.2d 632, 635 (Colo. 1988).
¶ 10 We review de novo the district court’s denial of a Crim. P. 35(c)
motion without a hearing. People v. Cali, 2020 CO 20, ¶ 14.
III. Ineffective Assistance of Counsel
¶ 11 Nesterenko argues that the district court erred by denying his
claims for ineffective assistance of counsel without a hearing. He
contends that his counsel was ineffective by (1) failing to conduct a
reasonable investigation; (2) providing him “bad plea advice”; and
(3) failing to properly represent him at sentencing. We disagree.
A. Legal Standard
¶ 12 To prevail on a claim of ineffective assistance of counsel, a
defendant must show that (1) counsel’s performance was deficient,
and (2) the deficient performance prejudiced the defense. Strickland
v. Washington, 466 U.S. 668, 697 (1984). Under the first prong of
4 this test, the defendant must show that counsel’s representation
“fell below an objective standard of reasonableness.” Id. at 688.
Under the second prong, the defendant must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. A
defendant who pleaded guilty must show “a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,
59 (1985); see also People v. Sifuentes, 2017 COA 48M, ¶ 20.
¶ 13 An ineffective assistance claim may be denied without a
hearing if the defendant’s allegations fail to satisfy either prong of
the Strickland test. Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003).
Allegations of deficient performance are insufficient if they are
“merely conclusory, vague, or lacking in detail.” People v. Osorio,
170 P.3d 796, 799 (Colo. App. 2007). A claim based on counsel’s
failure to investigate must specify “what additional investigation
counsel should have done, what the results of those efforts would
have been, and how they would have affected the outcome of the
case.” People v. Zuniga, 80 P.3d 965, 973 (Colo. App. 2003).
5 B. Failure to Investigate
¶ 14 We agree with the district court that Nesterenko’s ineffective
assistance claims alleging a deficient investigation by defense
counsel and a corresponding failure to retain expert witnesses were
conclusory, vague, and speculative.
¶ 15 Nesterenko claimed that if his counsel had conducted a more
thorough investigation and retained experts to assist in doing so, he
could have presented a viable defense by showing that the
allegations against him were fabricated. Among other things, he
asserted that such an investigation — including a reenactment of
the shooting and ballistic testing — would have revealed false
information in police reports, “concealment of exculpatory
evidence,” and “a substantial volume of impeaching evidence that
would have discredited any statements presented by” the victims.
¶ 16 But Nesterenko provided no factual allegations to support
these conclusory claims. He offered only the vague assertion that a
“ballistic[s] expert,” “forensic evidence,” and “material witness
testimony” would have shown that one of the victims fired the gun
and tried to frame him. He did not say how it would have done so.
He did not identify what the results of the investigation and expert
6 analysis would have been, much less how it would have shown that
he was innocent or that the victims’ allegations were fabricated.
See Zuniga, 80 P.3d at 973. Nor did he identify what exculpatory
information had been concealed or what impeaching evidence would
have been revealed by further investigation. Without such
information, Nesterenko’s allegations are too “conclusory, vague,
[and] lacking in detail” to support a claim. Osorio, 170 P.3d at 799.
¶ 17 Moreover, to the extent Nesterenko relies on his own assertion
of innocence, he acknowledged at the providency hearing and at
sentencing that he was blacked out during the incident and had no
memory of it. So, without any details about what a further
investigation would have shown, even Nesterenko’s claim that he is
factually innocent is itself speculative. See People v. Stovall, 2012
COA 7M, ¶ 28 (holding that defendant’s self-serving testimony is
insufficient to establish ineffective assistance of counsel).
C. Plea Advisement and Negotiations
¶ 18 Nesterenko next asserts that his counsel was ineffective
because he failed to negotiate a more favorable plea deal and
erroneously advised Nesterenko that he faced only two to six years
in prison. To the extent this claim is based on counsel’s allegedly
7 inadequate investigation, it fails for the reasons above: Nesterenko
did not adequately allege that counsel’s investigation was deficient
or that further investigation would have resulted in a more
favorable plea. To the extent the claim is based on counsel’s alleged
misadvisement regarding Nesterenko’s possible sentence, it is
refuted by the record.
¶ 19 The plea agreement provided that the charges to which
Nesterenko was pleading guilty did not require a mandatory prison
sentence under section 18-1.3-406. But the accompanying
advisement explained that if the court sentenced Nesterenko to a
term of incarceration, it must sentence him within the aggravated
range of eight to twenty-four years if he was on bond for another
felony at the time of his offenses (which he indisputably was).
¶ 20 The district court then clarified any ambiguity at the
providency hearing by explaining that if Nesterenko was sentenced
to prison for the second degree assault charge, he would be subject
to the crime of violence statute and a sentencing range of five to
sixteen years, not the standard two- to six-year range. Nesterenko
confirmed that he understood. The district court also advised
Nesterenko that he faced up to twenty-four years on the first degree
8 burglary charge under aggravated circumstances. Nesterenko again
confirmed that he understood the possible penalties, giving no
indication that the court’s advisement contradicted his
understanding or the advice he had received from counsel.
¶ 21 Thus, whether or not Nesterenko was properly advised by his
counsel regarding the maximum sentences, he was properly advised
by the district court. When a defendant receives advice from
counsel that differs from that in the written plea documents or the
district court’s advisement at the providency hearing, the defendant
has “an affirmative obligation to request clarification from the
court.” People v. DiGuglielmo, 33 P.3d 1248, 1251 (Colo. App.
2001); see also People v. Phipps, 2016 COA 190M, ¶ 52. The failure
to do so precludes a postconviction claim based on counsel’s
misadvisement. DiGuglielmo, 33 P.3d at 1251; Phipps, ¶¶ 50-52.
¶ 22 Because Nesterenko did not point out any discrepancies
between the district court’s advisement and his counsel’s
advisement — and indeed, confirmed his understanding of the
applicable sentencing ranges — he cannot raise the issue now.
9 D. Sentencing
¶ 23 Nesterenko’s claim of ineffective assistance of counsel at
sentencing fails for the same reasons. He contends that counsel
was ineffective by misleading him as to the consequences of
pleading guilty and allowing the prosecution to “breach its promise”
of a two- to six-year sentence. But as we have explained,
Nesterenko was correctly advised by the district court of the
possible sentence. And the plea agreement did not provide for a
two- to six-year sentence. Nor did it indicate that the crime of
violence statute would not apply. Rather, it said only that the crime
of violence statute did not require a mandatory prison sentence — a
point with which the district court agreed. The district court
clarified at the providency hearing that the crime of violence statute
would apply if the court opted to sentence Nesterenko to prison.
¶ 24 Nesterenko also asserted in his motion that his counsel should
have retained a “mitigation expert” to assist with sentencing and
presented a stronger case of mitigation. But other than generally
reasserting his claim of innocence, contrary to his guilty plea, he
did not specify what additional mitigation evidence could have been
presented or how it would have affected his sentence. Such a vague
10 reference to unspecified mitigating information cannot sustain an
ineffective assistance claim. See Osorio, 170 P.3d at 799.
IV. Voluntariness of Plea
¶ 25 Nesterenko’s challenge to the voluntariness of his plea is
derivative of his ineffective assistance claims. In short, he contends
that his counsel’s ineffective assistance made his plea “involuntary,
uninformed, and unintelligent” because he was deceived into
believing his maximum sentence was two to six years. Because we
have concluded that the district court correctly denied Nesterenko’s
ineffective assistance claims, we likewise conclude that it correctly
denied his challenge to the validity of his plea on the same grounds.
¶ 26 And to the extent Nesterenko asserts that the plea agreement
and written advisement were incorrect or misleading, the district
court clarified any ambiguity at the providency hearing by advising
Nesterenko that (1) the crime of violence statute would apply if he
were sentenced to prison; (2) the sentence for the second degree
assault charge would be five to sixteen years; and (3) the maximum
sentence for the first degree burglary charge was twenty-four years.
¶ 27 Nesterenko also alleged in his motion that counsel coerced
him to plead guilty. But the only purported coercion he identifies is
11 counsel’s advisement that he would likely be convicted and face a
greater sentence if he went to trial. Such an advisement does not
invalidate a guilty plea. See People v. Lopez, 2025 COA 73, ¶ 30;
People v. McCormick, 881 P.2d 423, 427 (Colo. App. 1994)
(explaining that the “desire to accept the certainty or probability of a
lesser penalty rather than face a wider range of possibilities” does
not make a guilty plea invalid). Moreover, Nesterenko’s allegations
of coercion are directly refuted by his unequivocal confirmation at
the providency hearing that no one had coerced him into pleading
guilty. See People v. Canody, 166 P.3d 218, 220 (Colo. App. 2007).
V. Proportionality of Sentence
¶ 28 Nesterenko finally argues that his sixteen-year sentence is
grossly disproportionate to his offenses. We disagree.
A. Applicable Law and Standard of Review
¶ 29 Both 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)).
¶ 30 When a defendant challenges the proportionality of a sentence,
the district court must first conduct an abbreviated proportionality
12 review, comparing the gravity or seriousness of the offense to the
harshness of the penalty to determine if the sentence gives rise to
an “inference of gross disproportionality.” Id. at ¶ 8. If it does not,
no further analysis is required and the sentence is constitutional.
Id. at ¶ 15. An extended proportionality review — the second step
of the analysis — is required only if the abbreviated proportionality
review gives rise to an inference of gross disproportionality. Id.
¶ 31 Ordinarily, the gravity or seriousness of an offense 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 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. But when an
offense is “grave or serious in every potential factual scenario,” it is
per se grave or serious, and the court may proceed directly to
consideration of the harshness of the penalty. Wells-Yates, ¶ 13.
¶ 32 In assessing the harshness of the penalty, the court should
consider both the length of the sentence and the defendant’s
eligibility for parole, affording “great deference” to the legislature’s
13 determination. Id. at ¶¶ 14, 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 not unconstitutional. Id. at ¶ 21 (citation omitted).
¶ 33 We review de novo whether a sentence raises an inference of
gross disproportionality. Id. at ¶ 35.
B. Analysis
¶ 34 In arguing that his sentence is grossly disproportionate,
Nesterenko does not distinguish between his fifteen-year sentence
for first degree burglary and his sixteen-year sentence for second
degree assault. But construing Nesterenko’s arguments broadly to
encompass both sentences, we agree with the district court that
neither raises an inference of gross disproportionality.
¶ 35 Beginning with the gravity or seriousness of the offenses, first
degree burglary is per se grave and serious, so we need not consider
the facts of that offense. See Wells-Yates, ¶¶ 13, 65. And although
second degree assault (intentionally causing bodily injury with a
deadly weapon) has not been deemed per se grave or serious, see
Melton v. People, 2019 CO 89, ¶ 28 n.5, it was grave and serious
under the circumstances of this case. As set forth in the arrest
14 warrant affidavit, which Nesterenko stipulated was part of the
factual basis for the offense, Nesterenko threatened the victims with
a gun and fired the gun into their house while “blacked out” from
alcohol and on bond for another felony. Thus, even if the victims
were not in fact injured, the offense involved violent conduct, or at a
minimum, the threat of violence. See McDonald, ¶ 12. Nesterenko’s
assertions to the contrary are based entirely on his protestations of
innocence and his denial of the acts to which he pleaded guilty.
¶ 36 Given the gravity and seriousness of Nesterenko’s offenses, his
fifteen-year and sixteen-year sentences are not overly harsh. First,
the sentences were within the range of sentences prescribed by the
legislature. See People v. Kennedy, 2023 COA 83M, ¶ 15 (cert.
granted Aug. 5, 2024) (“[I]f a crime is grave or serious, and so long
as the penalty is within the statutory range, the sentence is nearly
impervious to attack [on proportionality grounds].”). Second,
although Nesterenko was not adjudicated a habitual offender, the
district court noted that he “has a significant criminal history that
includes felony and misdemeanor convictions from Oklahoma and
Colorado, dating back to 2004.” See People v. Loris, 2018 COA 101,
¶ 30 (considering a defendant’s “persistent disrespect and disregard
15 for the rule of law” in making a proportionality determination
(citation omitted)). Third, Nesterenko will be eligible for parole after
serving seventy-five percent of his first degree burglary sentence.
See § 17-22.5-403(2.5)(a), C.R.S. 2025; Wells-Yates, ¶ 14.
¶ 37 Thus, comparing the gravity or seriousness of Nesterenko’s
offenses to the harshness of his sentences, we conclude that the
sentences do not raise an inference of gross disproportionality.
VI. Disposition
¶ 38 The order is affirmed.
JUDGE GROVE and JUDGE YUN concur.