Peo v. Drake

23CA1842 Peo v Drake 03-05-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1842
El Paso County District Court No. 98CR1817
Honorable William B. Bain, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Adam Joseph Drake,

Defendant-Appellant.

ORDER AFFIRMED

Division VII
Opinion by JUDGE JOHNSON
Pawar and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 5, 2026

Philip J. Weiser, Attorney General, Emmy A. Langley, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Nicole M. Mooney, Alternate Defense Counsel, Golden, Colorado, for Defendant-
Appellant
¶1 Defendant, Adam Joseph Drake (Drake), appeals the district

court’s order summarily denying his Crim. P. 35(c) motion. We

affirm.

I. Background

¶2 In 1998, Drake — who was seventeen years old at the time —

and three of his friends planned to rob the victim. The group

stayed the night at the victim’s apartment where everyone drank

and took drugs. The victim sexually assaulted Drake and one of

Drake’s friends. In the morning, the victim believed that the boys

stole his wallet and refused to let them leave. Drake was able to

find a way out of the apartment and waited in a car for over an hour

to see if his friends would leave. When they did not, he returned to

the apartment with a gun. Drake and the victim engaged in an

altercation. Drake fired five shots, and the victim died.

¶3 Drake was convicted of first degree murder, conspiracy to

commit aggravated robbery, two counts of aggravated motor vehicle

theft, theft, tampering with a witness, and witness intimidation.

His direct appeal filed in 1999 was dismissed due to his appellate

counsel’s failure to file an opening brief. People v. Drake, (Colo.

App. No. 99CA2246, Nov. 30, 2000) (unpublished order). In 2001,

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he filed his first Crim. P. 35(c) motion to reinstate his direct appeal

on grounds that his appellate counsel was ineffective. The

prosecution stipulated to reinstate his direct appeal. His judgment

of conviction was affirmed in People v. Drake, (Colo. App. No.

01CA1877, Dec. 4, 2003) (not published pursuant to C.A.R. 35(f))

(Drake I).

¶4 In 2011, Drake filed his second Rule 35(c) motion, which was

denied as successive by the postconviction court, but reversed by a

division of this court in People v. Drake, (Colo. App. No. 11CA1246,

June 20, 2013) (not published pursuant to C.A.R. 35(f)) (Drake II).

Drake II reasoned that Drake’s challenges to his first degree murder

conviction were not successive because his first postconviction

motion was a “special circumstance” in which he sought to

reinstate his direct appeal. Id. at 5-6. Drake II also concluded that,

if Drake’s first degree murder conviction was upheld, the court

must resentence him to life with the possibility of parole, as he

committed the offenses when he was a juvenile. Id. at 8-9.

¶5 As a result, Drake’s second Rule 35(c) motion was remanded

to the postconviction court, where, in 2017, he filed an amended

motion. Drake alleged that his trial counsel was ineffective for not

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(1) seeking to suppress his confession he made to police; (2) having

him accept the plea bargain offered to him by the prosecution;

(3) entering a guilty plea by reason of insanity; (4) investigating the

case before trial, specifically, for not retaining an expert to testify

about the characteristics of a juvenile brain that has suffered from

post-traumatic stress disorder; (5) retaining a crime scene

reconstructionist; (6) listening to a recording and interviewing

beforehand a witness, C.P.; and (7) filing a motion in limine to

prevent a witness from testifying about the teenage group’s plan to

murder one of the boy’s fathers. Drake also contended that his trial

counsel was ineffective because (8) trial counsel divulged the

location of a defense witness who gave damaging testimony; (9) trial

counsel’s cumulative ineffectiveness required reversal; and (10) trial

counsel allowed the prosecutor to engage in misconduct.1

¶6 After the postconviction court held a weeklong evidentiary

hearing in May 2018, it issued a detailed order denying the motion.

But it resentenced Drake as instructed by Drake II. The

1 Drake raised additional claims in his 2011 and 2017 motions, but

he did not appear to pursue them at the hearing or on appeal, and,
therefore, they are deemed abandoned. See People v. Garner, 2015
COA 174, ¶ 12 n.2.

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postconviction court’s denial of his second Rule 35(c) motion was

affirmed in People v. Drake, (Colo. App. No. 18CA2290, Oct. 20,

2022) (not published pursuant to C.A.R. 35(e)) (Drake III). Relevant

to this appeal, Drake III determined that, while there were

instructional errors in some of the jury instructions, Drake did not

raise his claim that trial counsel was ineffective by failing to object.

As a result, Drake III declined to address the argument. Id. at

¶¶ 37, 42-48.

¶7 In 2023, Drake filed his third Rule 35(c) motion, which was

summarily denied by the postconviction court, giving rise to this

appeal. Drake argued that (1) previous postconviction counsel was

ineffective for failing to raise that the district court provided

erroneous jury instructions on self-defense and defense of others,

or, alternatively; (2) previous postconviction counsel was ineffective

for failing to raise trial counsel’s ineffectiveness for failing to object

to the same erroneous jury instructions. In denying his motion, the

postconviction court applied Crim. P. 35(c)(3)(VII)’s procedural bar

to his claim that his previous postconviction counsel was ineffective

for failing to challenge the district court’s error with respect to the

jury instructions. But the postconviction court decided on the

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merits that previous postconviction counsel was not ineffective for

failing to raise trial counsel’s ineffectiveness for not objecting to the

same jury instruction errors.

¶8 On appeal, Drake contends that the postconviction court erred

by (1) applying Rule 35(c)’s procedural bar to previous

postconviction counsel’s ineffectiveness to challenge the district

court’s error on the jury instructions and (2) summarily denying his

claim that previous postconviction counsel was ineffective for failing

to challenge trial counsel’s ineffectiveness involving the jury

instructions.

II. Standard of Review and Applicable Law

¶9 We review de novo a district court’s denial of a Rule 35(c)

motion without a hearing. People v. Davis, 2012 COA 14, ¶ 6. A

district court also has the discretion to deny a Rule 35(c) motion

without a hearing if “the motion, files, and record in the case clearly

establish that the allegations presented in the defendant’s motion

are without merit and do not warrant postconviction relief.”

Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003).

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III. Analysis

A. Procedural Bar Involving the District Court’s Erroneous Jury
Instructions

¶ 10 Rule 35(c)(3)(VII) states that the court “shall deny any claim

that could have been presented in an appeal previously brought.”

(Emphasis added.) But Drake argues that, because this provision

was added to Rule 35(c) in 2004 and because his direct appeal was

filed in 1999, reinstated in 2001, and decided in 2003 before the

procedural bar was enacted, he could not have known he needed to

comply with this provision by raising in that appeal any challenge

to the district court’s error with respect to the jury instructions. In

other words, he argues that because his direct appeal took place

before the enactment of Rule 35(c)(3)(VII), he is not subject to the

procedural bar. The Attorney General disagrees, citing Dunlap v.

People, 173 P.3d 1054, 1062 n.4 (Colo. 2007), for the proposition

that the date a defendant’s postconviction motion is filed controls

as to whether Rule 35(c)(3)(VII) applies, not the date the direct

appeal was filed.

¶ 11 We need not definitively decide this issue because, even if we

do not apply the procedural bar, Drake’s claim fails. Because

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Drake did not object at trial to the jury instructions, previous

postconviction counsel would have had to establish that any error

committed by the court was plain. See People v. Versteeg, 165 P.3d

760, 764 (Colo. App. 2006), overruled on other grounds by, People v.

Crabtree, 2024 CO 40M; see also People v. Dyer, 2019 COA 161,

¶ 39 (an appellate court may affirm a district court order on any

grounds supported in the record).

¶ 12 Plain error is an error that “is obvious and substantial.”

Hagos v. People, 2012 CO 63, ¶ 14. A substantial error is one that

“so undermines the fundamental fairness of the trial itself as to cast

serious doubt on the reliability of the judgment of conviction.”

People v. Perez, 2024 COA 94, ¶ 26 (quoting Cardman v. People,

2019 CO 73, ¶ 19). An erroneous jury instruction generally does

not constitute plain error when “the record contains overwhelming

evidence of the defendant’s guilt.” People v. Ramcharan, 2024 COA

110, ¶ 67 (quoting Thompson v. People, 2020 CO 72, ¶ 54).

¶ 13 On appeal, Drake contends that previous postconviction

counsel was ineffective for failing to challenge the district court’s

erroneous jury instructions contained in Instruction Nos. 15, 16,

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17, 18, 19, 20, and 21. We first address the instructions that do

not contain any misstatements of law.

¶ 14 The district court concluded, and we agree, that Instruction

No. 15 largely tracked the applicable statute involving affirmative

defenses in effect at the time of Drake’s trial. See § 18-1-407(2),

C.R.S. 1999 (“[A]n affirmative defense is raised, then the guilt of the

defendant must be established beyond a reasonable doubt as to

that issue as well as all other elements of the offense.”). Because

the jury was instructed that the prosecution had the burden to

prove both the elements of the offense and the affirmative defense,

we discern no plain error.

¶ 15 As to Drake’s contention that the district court erred because

Instruction Nos. 17-20 incorrectly referred to “the defendant” when

they should have referred to the victim committing the predicate

offenses, we also agree with the postconviction court that any

confusion was remedied by Instruction No. 16. That instruction

advised the jury to consider whether “it reasonably appeared that

[the victim] was about to commit” the crimes listed in Instruction

Nos. 17-20. See People v. Procasky, 2019 COA 181, ¶ 10 (“[A]

court’s failure to properly instruct the jury ‘does not constitute

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plain error if the relevant instruction, read in conjunction with

other instructions, adequately informs the jury of the law.’” (quoting

People v. Miller, 113 P.3d 743, 750 (Colo. 2005))).

¶ 16 As to Instruction No. 20, Drake contends that one of the ways

in which second degree sexual assault could have been committed

was not included in the instruction. That instruction read:

The elements of the crime of second degree
sexual assault are:

1. That the defendant,

2. in the state of Colorado, at or about the
date and place charged,

3. knowingly inflicted sexual penetration or
sexual intrusion on a person, and

4. caused submission of that person, and

5. by any means of sufficient consequence
reasonably calculated to cause submission
against the victim’s will.

Instruction No. 16 indicated that an affirmative defense to first

degree murder existed if Drake “reasonably believed that” the victim

was “about to commit second degree assault, first degree

kidnapping, or second degree kidnapping, or second degree sexual

assault.” Drake contends that because the victim sexually

assaulted his friend while the friend was passed out, the jury

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instruction should also have included language informing the jury

that the fifth element could also have been satisfied if “the actor

kn[ew] that the victim [wa]s incapable of apprising the nature of the

victim’s conduct.”

¶ 17 But we agree with the postconviction court that, even if this

language was added to Instruction No. 20, “there was ample

evidence presented that the victim committed second degree sexual

assault on [Drake] and his friends based on the elements that were

presented in instruction #20.” And Drake does not point to any

evidence upon which the jury could have determined that the victim

was “about to” commit sexual assault on Drake or his friend while

they were passed out when Drake returned to the apartment and

confronted the victim before shooting him. Therefore, we conclude

there is no plain error.

¶ 18 As to Instruction No. 21 (initial aggressor), Drake III

determined that “if the jury did not agree that the victim was about

to commit (or was committing) a kidnapping or other predicate

crime, then Drake was the initial aggressor because he initiated the

physical conflict by brandishing the rifle, thereby threatening the

imminent use of unlawful force.” Drake III, ¶ 41. Drake has

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provided no compelling reason for us to depart from the holding in

Drake III that the court giving the initial aggressor instruction was

not error, and, thus, we discern no plain error. See DePineda v.

Price, 915 P.2d 1278, 1281 (Colo. 1996); Crim. P. 35(c)(3)(VI).

¶ 19 We now turn to the jury instructions that, based on Drake III,

contained elemental errors; these included Instruction No. 16 (self-

defense and defense of others), Instruction No. 18 (first degree

kidnapping), and Instruction No. 19 (second degree kidnapping).

Drake III, ¶¶ 45, 51. On appeal, the Attorney General does not

dispute Drake III’s conclusions that these jury instructions

contained elemental errors. Assuming the erroneous language in

the three instructions was obvious, Drake’s claims nonetheless fail

because the district court’s error does not “cast serious doubt on

the reliability of the judgment of conviction.” Perez, ¶ 26 (quoting

Cardman, ¶ 19). While Drake put forth evidence to support a

defense of defense of self and others, the postconviction court has

twice held that the evidence, including Drake’s own confession, was

“devastating.” Such evidence includes:

• Drake waited outside in the car for over an hour before

going back inside the apartment to kill the victim.

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• Drake confessed that he killed the victim; fired a final shot

into the back of the victim’s head to make sure the victim

was dead; did not know what was going on inside the

apartment but intended to kill the victim regardless; and

had to kill the victim and would not have loaded the gun if

he did not intend to kill him.

• Testimony from Drake’s friends provided that they all could

have left the apartment if they had wanted; the apartment

doors were not locked; they were all in and out of the

apartment that morning and the victim never physically

stopped them from leaving; there were minutes between

when Drake shot the victim the fourth time and when he

fired the fifth shot killing the victim; and the victim was not

moving or yelling when Drake fired the final shot killing the

victim.

¶ 20 Therefore, even assuming Drake’s claim is not barred by Rule

35(c)(3)(VII), we conclude that previous postconviction counsel was

not ineffective for failing to raise the claim that the district court

committed error in giving the challenged jury instructions because

his claim does not constitute plain error.

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¶ 21 Thus, the postconviction court did not err by summarily

denying Drake’s third Rule 35(c) motion on this claim.

B. Trial Counsel’s Ineffectiveness

¶ 22 Drake next contends that the postconviction court erroneously

denied his claim that previous postconviction counsel was

ineffective for failing to challenge trial counsel’s ineffectiveness in

failing to object to the jury instruction errors. We disagree.

¶ 23 To prevail on an ineffective assistance of counsel claim, the

defendant must establish that (1) counsel’s performance was

deficient, meaning it fell below an objective standard of

reasonableness; and (2) counsel’s deficient performance prejudiced

the defendant, meaning there is a reasonable probability that, but

for counsel’s deficient performance, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668,

687-88 (1984). A court may reject an ineffective assistance of

counsel claim if the defendant fails to demonstrate either deficient

performance or prejudice. People v. Aguilar, 2012 COA 181, ¶ 9. In

the context of a claim that postconviction counsel is ineffective, a

defendant’s claim fails if he cannot prove that his appellate claims

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would have been meritorious. People v. Valdez, 789 P.2d 406, 409-

10 (Colo. 1990).

¶ 24 The postconviction court concluded that because there were

elemental errors in Instruction Nos. 16, 18, and 19 — consistent

with Drake III’s determination — and trial counsel did not object at

trial, “[previous] postconviction counsel was arguably ineffective for

failing to argue that trial counsel was ineffective for failing to object

to these erroneous instructions.” But the postconviction court

reasoned that, “[e]ven if [Drake] had satisfied the first prong of the

Strickland test” regarding Instruction Nos. 16, 18, and 19, he could

not prove the prejudice prong based on the same “devastating”

evidence that we have already discussed above. In addition, the

postconviction court pointed to Drake’s own attorney expert, who

“acknowledged that the evidence against [Drake] was so strong that

he should have taken a plea to a possible 48-year prison sentence

rather than proceeding to trial.”

¶ 25 The prejudice standard under Strickland is an easier bar for a

defendant to satisfy compared to plain error. Villarreal v. People,

2012 CO 64, ¶ 2 (“The plain error standard requires that an error

impair the reliability of the judgment of conviction to a greater

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degree than the Strickland prejudice standard.”). Still, given

Drake’s confession and the testimony of his friends, we agree with

the postconviction court that there is no reasonable possibility that

the outcome of the proceeding would have been different. See

Strickland, 466 U.S. at 687-88.

¶ 26 Accordingly, we conclude that the postconviction court did not

err by summarily denying Drake’s third Rule 35(c) motion.

IV. Conclusion

¶ 27 The district court’s order is affirmed.

JUDGE PAWAR and JUDGE GOMEZ concur.

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