Peo v. Cleveland

24CA1303 Peo v Cleveland 10-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1303
Boulder County District Court No. 22CR467
Honorable Patrick Butler, Judge
Honorable Bruce Langer, Judge
Honorable Dea M. Lindsey, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jerry Douglas Cleveland,

Defendant-Appellant.

ORDER AFFIRMED

Division II
Opinion by JUDGE FOX
Meirink and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 23, 2025

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Teodorovic Law, P.C., Adrienne R. Teodorovic, Windsor, Colorado, for
Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Defendant, Jerry Douglas Cleveland, appeals the district

court’s order denying his motion to withdraw his guilty plea under

Crim. P. 32(d). We affirm the order.

I. Background

¶2 Boulder County charged Cleveland with sexual assault on a

child by one in a position of trust (a class 3 felony). Cleveland

rejected the initial plea offer and the case was scheduled for a jury

trial. On the morning of trial, Cleveland agreed to plead guilty to an

added count two, sexual exploitation of a child (a class 5 felony),

with a stipulation to probation and an agreement to dismiss the

original charge.

¶3 Before pleading guilty, Cleveland and his attorney reviewed the

new plea offer — extended for the first time that morning — but

Cleveland did not review or sign the plea paperwork before the

Crim. P. 11 plea colloquy. The district court then conducted a plea

colloquy, accepted Cleveland’s plea, and ordered a presentence

investigation (PSI) and a psychosexual evaluation. Two days later,

Cleveland filed a signed statement of plea agreement, which

included a full Crim. P. 11 advisement and the additional

conditions of probation for adult sex offenders.

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¶4 Nearly three months later, and two days before the sentencing

hearing, Cleveland moved to withdraw his guilty plea pursuant to

Crim. P. 32(d). Shortly thereafter, Cleveland’s plea counsel

withdrew, and his new attorney moved to supplement Cleveland’s

motion to withdraw his guilty plea. The court denied the motion

without a hearing.

¶5 Approximately one month later, Cleveland moved to reconsider

the court’s denial of the motion to withdraw his guilty plea. After

an evidentiary hearing, the district court again denied the motion.

II. Discussion

¶6 Cleveland contends that the district court abused its

discretion in denying his Crim. P. 32(d) motion to withdraw his

guilty plea. We disagree.

A. Governing Law and Standard of Review

¶7 Crim. P. 32(d) allows a defendant to file a motion to withdraw

a guilty plea before a sentence is imposed. Kazadi v. People, 2012

CO 73, ¶ 14. However, a defendant has no absolute right to

withdraw a guilty plea. People v. Boling, 261 P.3d 503, 504 (Colo.

App. 2011). To warrant plea withdrawal, the defendant bears the

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burden of establishing a “fair and just reason.” Kazadi, ¶ 14

(quoting People v. Chippewa, 751 P.2d 607, 609 (Colo. 1988)).

¶8 A court should consider the following non-exclusive list of

factors to determine whether a defendant has shown a fair and just

reason to withdraw his plea: (1) whether the prosecution would be

prejudiced by the withdrawal of the guilty plea; (2) whether the

defendant promptly moved to withdraw the guilty plea; and (3)

whether the defendant has shown that “justice will be subverted” if

the motion is denied. Crumb v. People, 230 P.3d 726, 733 (Colo.

2010) (citations omitted).

¶9 Justice could be subverted by denying a Rule 32(d) motion

where a defendant was surprised or influenced into a plea of guilty

to which the person had a defense; where a plea of guilty was

entered by mistake or under a misconception of the nature of the

charge; where such plea was entered through fear, fraud, or official

misrepresentation; where it was made involuntarily; or where

ineffective assistance of counsel occurred in the process. Kazadi,

¶ 14.

¶ 10 The district court has broad discretion to determine whether

the defendant has demonstrated a fair and just reason to withdraw

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a guilty plea, and we will not reverse the court’s denial of a Rule

32(d) motion unless the court abused its discretion. Id. at ¶ 15. “A

court abuses its discretion where its decision is manifestly

arbitrary, unreasonable, or unfair, or it applies an incorrect legal

standard.” People v. Rodriguez, 2022 COA 98, ¶ 12.

B. Analysis

¶ 11 Cleveland argues that the district court abused its discretion

in denying his request to withdraw his guilty plea because the court

gave a deficient Crim. P. 11 advisement at the providency hearing

and because he established several other fair and just reasons

supporting withdrawal. We are not persuaded.

1. Crim. P. 11

¶ 12 Cleveland argues that the district court failed to adequately

advise him of the nature of the charge, the possible penalties, and

the factual basis for the plea agreement, as required by

Crim. P. 11(b)(1), (4), and (6), which constituted a fair and just

reason to withdraw his guilty plea. The district court acknowledged

that reviewing plea paperwork one or two days after the providency

hearing may not be “best practice,” but that Cleveland was

nonetheless “aware of the charge he was pleading to, . . . aware of

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the level of charge, and aware of the stipulated sentence as well as

the potential penalties should he be unsuccessful on his

probationary sentence.” The record supports the court’s findings.

¶ 13 Plea counsel testified at the evidentiary hearing that he

advised Cleveland pre-plea that added count two was a charge “for

people that possess or distribute child pornography.” At the

beginning of the providency hearing, the prosecution explained that

the proposed agreement was for a guilty plea to “an added count

two, a class 5 felony, sexual exploitation of a child.” The court

repeated the nature of the charge during the plea colloquy. See

People v. Cabral, 698 P.2d 234, 236 (Colo. 1985) (“[T]he mere

reading of a charge may be sufficient to satisfy the requirement of

Crim. P. 11(b)(1) if the charge itself is readily understandable to

persons of ordinary intelligence without further explanation by the

court.”). And in signing the plea paperwork, which included the

elements of the offense, Cleveland acknowledged that he

understood “the nature of the charge(s) against” him and that he

“read and underst[ood] the elements of the offense.”

¶ 14 Counsel testified that Cleveland was “not plead[ing] guilty to it

because [he] did it,” but for the benefit of the bargain. Counsel also

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explained that he told Cleveland that “a plea bargain means you

can plead guilty to something whether you did it or not.” Counsel

testified that he advised Cleveland pre-plea of the sentencing range

for a class 5 felony “if [he] were at some point to be sentenced to

prison,” and the plea paperwork also contained the sentencing

range. Counsel ultimately opined that Cleveland was adequately

advised.

¶ 15 Viewed in totality, counsel’s pre-plea advisement, the plea

colloquy, and the plea paperwork ensured that Cleveland was fully

advised in compliance with Crim. P. 11. Consequently, Cleveland’s

claim that the district court failed to properly advise him is without

merit.

2. The Crumb Factors

¶ 16 Applying the Crumb factors, we perceive no abuse of discretion

in the district court’s finding that Cleveland failed to show a fair

and just reason to withdraw his guilty plea. See Crumb, 230 P.3d

at 733. Only the first factor is favorable to Cleveland because the

district court found that the prosecution would not be prejudiced by

Cleveland’s withdrawal of his plea. As explained below, the other

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two Crumb factors weigh in favor of the district court’s decision to

deny Cleveland’s motion to withdraw his guilty plea.

a. Lack of Promptness

¶ 17 Cleveland contends that he promptly moved to withdraw his

guilty plea after realizing that he had received bad advice from

counsel. Specifically, Cleveland argues that he did not realize that

he could not successfully complete sex offender intensive

supervised probation (SOISP) while maintaining his innocence until

he received the PSI one week before the sentencing hearing. The

district court found that Cleveland’s motion to withdraw his guilty

plea was not prompt because he filed it “merely two days before

sentencing and nearly three months after accepting the plea.” See

id. (concluding that the defendant’s motion to withdraw his guilty

plea was not prompt when he filed it forty-nine days after he

entered the plea). The court also found that counsel informed

Cleveland pre-plea “that he would be required to accept

responsibility and undergo sex offender treatment.” The record

supports the court’s findings.

¶ 18 Counsel testified that he advised Cleveland pre-plea of the

requirement to “take responsibility at some point in some manner”

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to successfully complete SOISP; that SOISP is “difficult” and

“rigorous”; that sex offender treatment is “invasive, difficult,

embarrassing”; that Cleveland’s internet use would be restricted

and monitored; and that there could be “difficulties associated with

international travel.”

¶ 19 Cleveland signed and filed plea paperwork two days after the

providency hearing; the district court reviewed and approved it that

day. In signing the plea paperwork, Cleveland “agree[d] to abide by

all terms and conditions of” SOISP. The plea paperwork included a

document listing twenty-nine additional conditions of probation for

adult sex offenders. Cleveland initialed each of the twenty-nine

conditions and signed the document, certifying that he “read these

conditions carefully,” “had the opportunity to ask questions about

them,” understood “the conditions fully,” and “agree[d] to abide by

them.”

¶ 20 Immediately after the providency hearing, counsel retained the

former head of the Boulder County Probation Department to help

Cleveland complete the PSI paperwork and prepare for the PSI

interview, and ultimately to successfully complete probation. To

that end, Cleveland made the following statements during his PSI

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interview, conducted nearly two months before he moved to

withdraw his guilty plea:

• “All I can say is that I accept and agree with what this

young woman said.”

• “It’s just exactly as she said.”

• “Her account and words are perfectly fine.”

• “I have great, great regret.”

• “I had a momentary lapse of judgment many years ago;

ten to twelve years ago.”

¶ 21 But when Cleveland was interviewed for the psychosexual

evaluation one month later, he once again denied all culpability.

¶ 22 Based on this record, it appears that Cleveland’s reason for

moving to withdraw his plea was simply that he changed his mind;

he had been adequately advised of the requirements of SOISP,

including the need to take responsibility, months before he moved

to withdraw his guilty plea. Compare People v. DiGuglielmo, 33 P.3d

1248, 1250 (Colo. App. 2001) (trial court did not abuse its

discretion in denying defendant’s motion to withdraw his guilty plea

where “the record indicated that [the] defendant had simply

changed his mind about the disposition to which he had agreed”),

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with Chippewa, 751 P.2d at 610-11 (the defendant established a

fair and just reason to withdraw his guilty plea where his parole

status, revealed in the probation report, was unknown at the time

of the providency hearing and he thus had “every reason to believe

that he could receive a sentence that he was ineligible to receive”).

¶ 23 Thus, we cannot conclude that the district court arbitrarily,

unfairly, or unreasonably faulted Cleveland for the late filing of his

motion.

b. No Subversion of Justice

¶ 24 Cleveland next argues that justice would be subverted in

denying his motion because he entered his plea through fear based

on counsel’s statements that Cleveland, as a sex offender, “would

be a target for violence in prison.” But the district court found, with

record support, that Cleveland did not accept the plea agreement

based on fear.

¶ 25 To be sure, counsel testified that the “dangerousness” of

prison had been discussed numerous times “over the course of the

previous three years . . . and it was certainly a piece of the equation

about whether or not to accept this plea bargain.” But counsel

denied saying that Cleveland “would be shived” or “wouldn’t last

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fifteen minutes in prison.” The court found that there was

insufficient evidence that counsel told Cleveland he “would not last

a day in prison,” or that he would be “knifed” or “have a ‘shiv’ stuck

in him.” Based on the court’s findings, which have record support,

Cleveland’s argument that justice would be subverted because he

entered his plea through fear is unavailing.

¶ 26 Cleveland argues, without explanation, that justice would be

subverted in denying his motion to withdraw guilty plea because

“he was influenced . . . into taking the plea when he had a defense.”

But this claim was not raised in the district court and therefore, we

decline to address it for the first time on appeal. See People v.

McClellan, 515 P.2d 1127, 1128 (Colo. 1973) (“Since th[e] allegation

was not raised in [the defendant’s] motion and there was no finding

on it by the trial court, this issue is not properly before this court

for review.”); People v. Allman, 2012 COA 212, ¶ 13 (“Explicit

arguments alert the trial court to the challenger’s contentions and

enable the trial court to make a factual record on the issue, which

is imperative to appellate review.”).

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3. Ineffective Assistance of Counsel

¶ 27 Finally, Cleveland argues that he entered his plea because of

ineffective assistance of counsel. We are not persuaded.

¶ 28 “Ineffective assistance of counsel at the time a guilty plea is

entered may constitute a fair and just reason to withdraw the plea

prior to sentencing.” Kazadi, ¶ 21. To prevail on a Crim. P. 32(d)

motion based on ineffective assistance of counsel, a defendant must

meet the standards for both ineffective assistance of counsel and

withdrawal of a guilty plea. People v. Madera, 112 P.3d 688, 692

(Colo. 2005).

¶ 29 To prove the ineffective assistance of counsel in the plea

context, a defendant has the burden of establishing that (1) his

counsel performed deficiently and (2) a reasonable probability exists

that, but for counsel’s deficient performance, he would have

pleaded not guilty and insisted on going to trial. See People v.

Corson, 2016 CO 33, ¶ 35 (citing Hill v. Lockhart, 474 U.S. 52, 58-

59 (1985)).

¶ 30 Failure to prove either prong is fatal to an ineffective

assistance of counsel claim. Strickland v. Washington, 466 U.S.

668, 687 (1984); see Corson, ¶ 38 (if a defendant has failed to show

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prejudice, a court may resolve an ineffective assistance of counsel

claim on that basis and need not address whether counsel’s

performance was deficient).

¶ 31 Cleveland argues that he received ineffective assistance of

counsel because (1) counsel misadvised him that he could

successfully complete SOISP while maintaining his innocence; (2)

counsel influenced Cleveland to plead guilty out of fear; and (3)

counsel “pushed” Cleveland to accept the plea during an

“unreasonably brief pre-plea conference.” As discussed above,

counsel did not advise Cleveland that he could successfully

complete SOISP while maintaining his innocence and did not

improperly influence Cleveland to plead guilty out of fear. And the

district court found that counsel may not have used “best practices

in advising” Cleveland, but “counsel’s performance was not so

deficient as to undermine the proper functioning of the adversarial

process.” The record supports the court’s finding.

¶ 32 At the evidentiary hearing, counsel acknowledged that the

morning of the plea was a “bit of a whirlwind” and that it was

“unfair” that Cleveland had to make a “snap decision.” But counsel

testified that Cleveland was nonetheless “adequately advised” and

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did not “have any concern or any questions . . . that went

unanswered.”

¶ 33 Counsel testified that he advised Cleveland that this offer “was

in his best interests” because he would receive a determinate,

rather than an indeterminate, sentence, and that the offer came

with a stipulation to probation. Even if Cleveland were to struggle

on SOISP because of his failure to take responsibility, counsel

advised Cleveland pre-plea that if probation was revoked, “there

would be a determina[te] and a much shorter prison sentence.”

Had Cleveland lost at trial, he would have faced a mandatory

indeterminate prison sentence. Ultimately, counsel concluded that

there was a “significant likelihood of a conviction” and that

accepting the plea was “safer” than a jury trial.

¶ 34 Counsel’s testimony demonstrates that Cleveland’s primary

reason for pleading guilty was to avoid an indeterminate prison

sentence. See People v. Campos-Corona, 2013 COA 23, ¶ 15 (the

defendant failed to establish prejudice from counsel’s inadequate

advice regarding the immigration consequences of pleading guilty

when his “overriding goal [in accepting the plea offer] was to avoid

going to prison”). And the record does not indicate that, even if

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Cleveland received an adequate advisement, it would have been

rational for him to reject the plea agreement. See Padilla v.

Kentucky, 559 U.S. 356, 372 (2010) (To obtain relief on an

ineffective assistance claim premised on counsel’s advice before the

defendant enters a plea, “a petitioner must convince the court that

a decision to reject the plea bargain would have been rational under

the circumstances.”); People v. Sifuentes, 2017 COA 48M, ¶ 21 (an

analysis of whether a decision to reject a plea offer would have been

rational should consider “the attractiveness of the plea deal and the

risks of going to trial”).

¶ 35 Accordingly, we perceive no error in the district court’s finding

that counsel’s performance was not deficient.

C. Conclusion

¶ 36 For the reasons explained above, we conclude that the district

court did not abuse its discretion in finding that Cleveland failed to

establish a fair and just reason for withdrawing his guilty plea. See

Kazadi, ¶ 14.

III. Disposition

¶ 37 The order is affirmed.

JUDGE MEIRINK and JUDGE HAWTHORNE concur.

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