Peo v. Smith
CourtColorado Court of Appeals
Date FiledOctober 29, 2026
Docket25CA1574
StatusUnpublished
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Full Opinion
25CA1574 Peo v Smith 10-29-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA1574
City and County of Denver District Court No. 09CR3321
Honorable Andrew J. Luxen, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Rodney A. Smith,
Defendant-Appellant.
ORDER AFFIRMED
Division V
Opinion by JUDGE GROVE
Freyre and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 29, 2026
Philip J. Weiser, Attorney General, Brian M. Lanni, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Rodney A. Smith, Pro Se
¶1 Defendant, Rodney A. Smith, appeals the postconviction
court’s order denying his fifth Crim. P. 35(c) motion. We affirm.
I. Background
¶2 In July 2009, the People charged Smith with sexual assault.
The complaint and information alleged the following:
Mitchell R. Morrissey, District Attorney for the
Second Judicial District, of the State of
Colorado, in the name and by the authority of
the People of the State of Colorado, informs the
court of the following offenses committed, or
triable, in the county of Denver:
COUNT 1: SEXUAL ASSAULT (F3)
On or about October 17, 2008, RODNEY
ANDRE WILSON SMITH unlawfully,
feloniously, and knowingly inflicted sexual
intrusion or sexual penetration on [J.G.], and
the defendant knew that the victim was
incapable of appraising the nature of the
victim’s conduct.
Further, the victim was physically helpless and
the defendant knew the victim was physically
helpless and the victim had not consented; in
violation of section 18-3-402(1)(b), (4)(e), C.R.S.
¶3 Three months later, the prosecution moved to amend the
complaint. The motion listed the case number and division
courtroom from the original complaint and sought “to amend the
above numbered Complaint and Information as follows: to add the
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attached proposed amended count one and added count two.” The
motion further asked that those counts “be made a part of the
Complaint and Information [i]n this case.”
¶4 Amended count one charged Smith with “sexual assault, 18-3-
402(1)(h), C.R.S. (F3).” It alleged that he “unlawfully, feloniously,
and knowingly inflicted sexual penetration or sexual intrusion on
[J.G.], while [she] was physically helpless and [he] knew [she] was
physically helpless and [she] had not consented; in violation of
section 18-3-402(1)(h), C.R.S.”
¶5 Added count two charged Smith with “sexual assault, 18-3-
402(1)(b), C.R.S. (F4).” It alleged that he “unlawfully, feloniously,
and knowingly inflicted sexual intrusion or sexual penetration on
[J.G.], and [he] knew that [she] was incapable of appraising the
nature of [her] conduct; in violation of section 18-3-402(1)(b),
C.R.S.”
¶6 The trial court granted the motion to amend, and a jury
convicted Smith of the amended and added sexual assault counts.
¶7 After adjudicating Smith a habitual criminal, the trial court
imposed a controlling sentence of forty-eight years to life in the
custody of the Department of Corrections. A division of this court
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affirmed Smith’s conviction and sentence on direct appeal. See
People v. Smith, (Colo. App. No. 10CA2161, July 11, 2013) (not
published pursuant to C.A.R. 35(f)).
¶8 In the decade that followed, Smith filed numerous
postconviction motions, variously requesting relief under Crim. P.
35(a), (b), and (c). The postconviction court denied each of those
motions. On the two occasions that Smith appealed the denial of
his Crim. P. 35(c) motions, divisions of this court affirmed. See
People v. Smith, (Colo. App. No. 15CA0016, Aug. 4, 2016) (not
published pursuant to C.A.R. 35(e)); People v. Smith, (Colo. App. No.
17CA1528, Oct. 31, 2019) (not published pursuant to C.A.R. 35(e)).
¶9 In May 2025, Smith filed his fifth Rule 35(c) motion, the denial
of which is the subject of this appeal. Although he recognized that
his motion was untimely, he asserted an exception to timeliness —
namely, that the trial court lacked subject matter jurisdiction over
his case because the prosecution’s motion to amend failed to allege
that the offenses were committed within the trial court’s
jurisdiction.
¶ 10 The postconviction court denied Smith’s motion. Because
Smith alleged a lack of subject matter jurisdiction, the court found
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that his motion was not untimely. As to the merits, however, the
court concluded that the original complaint had properly conferred
subject matter jurisdiction over the case. The original complaint,
the court found, alleged that Smith “committed an offense ‘triable in
the county of Denver’ within the jurisdiction of Denver District
Court” and “included the charging statute, the named victim, and a
detailed report in the Arrest Warrant,” which satisfied the
requirements of Crim. P. 7. Because the original complaint
conferred jurisdiction, the motion to amend did not need to reassert
location and, therefore, was not deficient for failing to do so.
¶ 11 However, even if the motion to amend had been deficient, the
court concluded that any defect did not warrant reversal because
Smith failed to allege that he was prejudiced. That is, the court
continued, any defect in the motion to amend related to the
complaint’s form –– not its substance –– and therefore, needed to be
asserted before trial. Because Smith had not raised this issue
before trial, he waived it. Accordingly, the court concluded that
Smith failed to assert legal grounds for relief and denied his motion.
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II. Discussion
¶ 12 Reasserting his claim that the trial court lacked subject matter
jurisdiction, Smith contends that the postconviction court erred by
denying relief. We perceive no error.
A. Standard of Review
¶ 13 We review de novo both the sufficiency of a charging document
and a postconviction court’s denial of a Crim. P. 35(c) motion. See
People v. Perez-Hernandez, 2013 COA 160, ¶ 30; People v. Cali,
2020 CO 20, ¶ 14.
B. Analysis
¶ 14 Ordinarily, collateral challenges to non-class 1 felony
convictions must be filed within three years of the conviction
becoming final. § 16-5-402(1), C.R.S. 2026; see People v. Shepard,
151 P.3d 580, 582 (Colo. App. 2006) (a conviction is final for
purposes of postconviction review when the defendant’s direct
appeal has been exhausted if an appeal is pursued, or when the
sentence is imposed if no appeal is pursued). Such challenges are
also barred as successive when they were, or could have been,
raised in a prior postconviction proceeding. Crim. P. 35(c)(3)(VI),
(VII) (a trial court shall deny any claim that was, or could have
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been, raised and resolved in a prior appeal or postconviction
proceeding on behalf of the same defendant). However, challenges
to a trial court’s subject matter jurisdiction are exempt from both
the timeliness requirement of section 16-5-402(1) and the
successiveness bar of Crim. P. 35(c)(3)(VII). See § 16-4-402(2)(a);
Crim. P. 35(c)(3)(VII)(d).
¶ 15 Subject matter jurisdiction in criminal courts is established by
the filing of a legally sufficient complaint. People v. Garcia, 2013
COA 15, ¶ 18. A complaint is sufficient when it enables a reader to
understand, among other things, the essential elements of the
charged offense and “[t]hat the offense was committed within the
jurisdiction of the court, or is triable therein.” Crim. P. 7(b); § 16-5-
202(1), C.R.S. 2026; People v. Melillo, 25 P.3d 769, 778 (Colo. 2001).
¶ 16 A complaint may be defective in either form or substance.
People v. Curtis, 2021 COA 103, ¶ 10. If the complaint adequately
advises the defendant of the charges, any defect is one of form,
rather than substance. People v. Washam, 2018 CO 19, ¶ 14.
Defects of substance are jurisdictional, may be raised at any time,
and void any resulting convictions. People v. Williams, 984 P.2d 56,
63-64 (Colo. 1999). Defects of form, on the other hand, are waived
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if not raised before trial and do not require reversal unless the
defendant’s rights were substantially prejudiced thereby. Id. at 64.
¶ 17 We conclude that the original complaint did not contain any
defects and, thus, properly conferred subject matter jurisdiction to
the trial court. The original complaint alleged that “the following
offenses [were] committed, or triable, in the county of Denver.”
Unlike in People v. Steiner, upon which Smith relies, this statement
was in the body of the complaint and not merely the caption. Cf.
People v. Steiner, 640 P.2d 250, 252 (Colo. App. 1981) (listing the
location in the caption of the complaint was insufficient to invoke
the trial court’s jurisdiction).1 And based on this statement, it was
clear that the charged offense was committed within the jurisdiction
1 As a divisional court, we are not bound by the holding in People v.
Steiner, 640 P.2d 250, 252 (Colo. App 1981). See People v. Snelling,
2022 COA 116M, ¶ 49 n.2 (“One division of this court is not bound
by the decision of another division . . . .”). However, we need not
consider whether we would accept the Steiner division’s application
of Crim. P. 7(b) because the complaint in that case, which made
references to location only in the caption and in the deputy district
attorney’s signature block, Steiner, 640 P.2d at 252, is
distinguishable from the complaint here, which included a
statement in the body of the complaint that “the following offenses
[were] committed, or triable, in the county of Denver.”
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of the Denver County District Court and was triable therein. See
Crim. P. 7(b); § 16-5-202(1)(c).
¶ 18 Indeed, a division of this court confirmed the validity of
substantively identical language in People v. Brinson, 739 P.2d 897,
898-99 (Colo. App. 1987). In Brinson, following the listing of the
five counts against the defendant, the complaint stated, “Each
foregoing offense was committed in, and/or is triable in, El Paso
County, Colorado.” Brinson, 739 P.2d at 898. The Brinson division
concluded that this statement “clearly advised [the] defendant of the
claimed location of the offenses and, therefore, met the technical
requirements of Crim. P. 7(b)(2).” Id. at 899. While in this case, the
location allegation appeared at the beginning of the complaint
rather than the end, we see no meaningful difference between the
structure of the complaint in Brinson and the complaint at issue
here. Thus, we conclude that the complaint’s general allegation
that the charged offenses occurred in Denver was sufficient and
properly conferred subject matter jurisdiction in this case.
¶ 19 Nor are we persuaded by Smith’s assertion that the
prosecution’s motion to amend the complaint contained a “fatal”
defect because it failed to allege the location of the charged offenses.
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Smith frames this argument as a jurisdictional issue, but contrary
to Smith’s contention, the motion to amend did not need to reassert
the location. The original complaint had already alleged location,
thereby invoking the trial court’s jurisdiction, and the motion to
amend incorporated the original complaint. In the motion to
amend, the prosecution listed the case number and division
number on the original complaint and moved “to amend the above
numbered Complaint and Information.” This clear and specific
reference to the original complaint sufficiently incorporated it into
the motion to amend. See Esquivel-Castillo v. People, 2016 CO 7,
¶ 15 (in order for one count to be incorporated into another, the
latter must contain a clear and specific reference to the former);
Melillo, 25 P.3d at 777 (one count may incorporate another count by
containing a clear reference to the latter). Therefore, the motion to
amend did not result in any jurisdictional defect.
¶ 20 Accordingly, because the claims in Smith’s postconviction
motion did not in fact call into question the trial court’s jurisdiction,
they are barred as untimely and successive. See § 16-5-402(1);
Crim. P. 35(c)(3)(VIII).
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¶ 21 Although it is raised for the first time on appeal, we also reject
Smith’s argument that certain errors in the statutory citation and
language in the original complaint were substantive defects that
prevented the trial court from acquiring jurisdiction. See People v.
Gardner, 250 P.3d 1262, 1269 (Colo. App. 2010) (challenges to
subject matter jurisdiction may be raised on appeal even when not
raised in the district court). The Colorado Supreme Court and
divisions of this court have both repeatedly concluded that an error
in the statutory citation or language in a complaint constitutes a
defect of form. See, e.g., People v. Marion, 514 P.2d 327, 328 (Colo.
1973) (correction of the statutory citation in the complaint during
jury selection was a matter of form because “the statutory reference
in the information is an immaterial part of the information”);
Cervantes v. People, 715 P.2d 783, 784-86 (Colo. 1986) (failure to
specify the subsection of the assault statute or include language
tracking that subsection in the complaint was a defect of form);
People v. Russell, 36 P.3d 92, 96 (Colo. App. 2001) (“[T]he failure to
name the kind of attempted first degree murder at issue or to cite to
the appropriate statutory subsection was a defect in form rather
than substance.”). Thus, the fact that the original complaint
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incorrectly cited subsection (4)(e) of the sexual assault statute and
contained the “physically helpless” language from subsection (1)(h)
does not render it substantively defective. Those were defects in the
form of the original complaint. As such, Smith was required to
raise his objections to those defects before trial. See Williams, 984
P.2d at 64. By failing to do so, he waived the asserted error. See id.
¶ 22 In any event, the asserted defects of form could not have
prejudiced Smith because they were cured by the motion to amend
seven months before trial. See id. at 63 (“[A] defect of form can be
cured by amendment any time prior to the verdict . . . .”).
¶ 23 In sum, we conclude that the original complaint properly
invoked the trial court’s subject matter jurisdiction and any defects
therein were purely matters of form, which were cured well before
trial.
III. Disposition
¶ 24 We affirm the postconviction court’s denial of Smith’s Crim. P.
35(c) motion.
JUDGE FREYRE and JUDGE LUM concur.
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