Peo v. Donis

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.

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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

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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.

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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.

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¶ 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

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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

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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]

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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.

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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

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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.

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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.

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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

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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

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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:

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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).

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¶ 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.

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¶ 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

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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

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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

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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

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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

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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

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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

innocence.

¶ 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

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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).

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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.

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