Peo v. Fleeks

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.

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¶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

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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.”

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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.

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¶ 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,

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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.

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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

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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

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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).

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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

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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.

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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

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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.

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¶ 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.

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¶ 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.

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