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 1 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 2 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 3 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. 4 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 5 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 6 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.” 7 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. 8 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). 9 ¶ 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 10 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. 11