Peo v. Smith

24CA1350 Peo v Smith 05-29-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1350
Adams County District Court No. 12CR2061
Honorable Patrick H. Pugh, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Timothy David Smith,

Defendant-Appellant.

ORDER AFFIRMED

Division II
Opinion by JUDGE HARRIS
Fox and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 29, 2025

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Timothy David Smith, Pro Se
¶1 Defendant, Timothy David Smith, appeals the district court’s

order denying his postconviction motion. We affirm.

I. Background

¶2 In 2012, Smith pleaded guilty to first degree assault with a

deadly weapon and attempted sexual assault on a child.

¶3 In January 2013, the district court sentenced Smith to

twenty-eight years in the custody of the Department of Corrections

(DOC) for first degree assault and a concurrent term of three years

in DOC custody for attempted sexual assault.

¶4 Smith did not directly appeal his conviction or sentence.

¶5 Smith filed a motion for reconsideration of his

twenty-eight-year sentence under Crim. P. 35(b). The district court

denied the motion, finding that the sentence was appropriate given

the serious nature of the offense.

¶6 In 2014, Smith filed a Crim. P. 35(c) motion, which was

supplemented by counsel in 2015, asserting ineffective assistance

of counsel. The district court ultimately denied that motion, and a

division of this court affirmed. See People v. Smith, (Colo. App. No.

17CA1545, June 13, 2019) (not published pursuant to C.A.R.

35(e)).

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¶7 In 2019, Smith filed a second motion for sentence

reconsideration, which the district court denied as untimely. A

division of this court affirmed and remanded for correction of the

mittimus. See People v. Smith, (Colo. App. No. 19CA2384, Sep. 30,

2021) (not published pursuant to C.A.R. 35(e)).

¶8 In May 2024, Smith filed the postconviction motion at issue

here. He first argued that his plea was not knowing, voluntary, and

intelligent because the district court failed to advise him properly

under Crim. P. 11. He also argued that his twenty-eight-year DOC

sentence for first degree assault exceeded that authorized by law

because the court misapprehended the maximum sentence in the

aggravated range as thirty-two years, rather than twenty-four years.

¶9 The district court denied Smith’s motion. As to his first claim,

the court construed it under Crim. P. 35(b) and denied it as

untimely and meritless. As to his second claim, the court

construed it under Crim. P. 35(a) and concluded that Smith’s

twenty-eight-year sentence was not illegal because the correct

sentencing range was ten to thirty-two years, since first degree

assault is both a crime of violence and an extraordinary risk crime.

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II. Discussion

¶ 10 On appeal, Smith contends that the district court erred by

denying his motion. He maintains that he was misadvised under

Crim. P. 11 and that the maximum sentence he was subject to for

first degree assault was twenty-four years, rendering his

twenty-eight-year sentence illegal. We disagree with his

contentions.

A. Crim. P. 11 Advisement

¶ 11 Smith argues that the district court erred by construing his

Crim. P. 11 advisement claim under Crim. P. 35(b) when it was

instead cognizable under Crim. P. 35(a). However, Smith’s claim is

not cognizable under either Crim. P. 35(a) or (b) but is instead

construed under Crim. P. 35(c). See Crim. P. 35(c)(2)(I), (III) (a

defendant may seek postconviction review of his or her conviction

on the grounds that the conviction was obtained in violation of the

constitution or laws of the United States or Colorado); People v.

Dawson, 89 P.3d 447, 449 (Colo. App. 2003) (“[A]fter sentence has

been imposed, the validity of a guilty plea can be challenged under

Crim. P. 35(c).”); see also People v. Collier, 151 P.3d 668, 670 (Colo.

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App. 2006) (the substance of a postconviction motion controls

under which rule it is properly designated).

¶ 12 Construing this claim under Crim. P. 35(c), we conclude that it

is time barred and successive.

¶ 13 First, it is time barred because (1) his conviction became final

in January 2013 when he was sentenced, see People v. Shepard,

151 P.3d 580, 582 (Colo. App. 2006); and (2) he filed this claim

more than three years after his conviction became final and did not

allege justifiable excuse or excusable neglect for the late filing, see

§ 16-5-402(1), (2)(d), C.R.S. 2024 (absent justifiable excuse or

excusable neglect, the time limit for filing a postconviction challenge

to non-class 1 felony convictions is three years); Crim. P. 35(c)(3)(I)

(any motion filed more than three years after the conviction is final

must allege facts to establish justifiable excuse or excusable

neglect); see also Close v. People, 180 P.3d 1015, 1019 (Colo. 2008);

Collier, 151 P.3d at 671.

¶ 14 Second, the claim is procedurally barred as successive. Crim.

P. 35(c)(3)(VII) requires a court to deny any claims that could have

been raised in prior postconviction proceedings. Because this claim

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could have been raised in Smith’s 2014 Crim. P. 35(c) motion, it is

successive.

¶ 15 We therefore conclude that the district court did not err by

denying Smith’s Crim. P. 11 advisement claim, albeit on different

grounds. See People v. Manyik, 2016 COA 42, ¶ 69 (“We may affirm

the court’s ruling on any ground supported by the record, even if

that ground was not articulated or considered by the court.”).

B. Illegal Sentence

¶ 16 We review the legality of a sentence de novo. Magana v.

People, 2022 CO 25, ¶ 33.

¶ 17 Crim. P. 35(a) permits a “court [to] correct a sentence that was

not authorized by law or that was imposed without jurisdiction at

any time.” “An illegal sentence is one that is not authorized by law,

meaning that it is inconsistent with the sentencing scheme

established by the legislature.” People v. Jenkins, 2013 COA 76,

¶ 11.

¶ 18 Smith pleaded guilty to first degree assault with a deadly

weapon causing serious bodily injury under section 18-3-202(1)(a),

C.R.S. 2024. This is a class 3 felony. § 18-3-202(2)(b). Class 3

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felonies carry a presumptive sentencing range of four to twelve

years. § 18-1.3-401(1)(a)(V)(A), C.R.S. 2024.

¶ 19 First degree assault is an extraordinary risk crime.

§ 18-1.3-401(10)(a), (b)(XII); § 18-1.3-406(2)(a)(I), (II)(C), C.R.S.

2024. Therefore, the maximum sentence in the presumptive range

is increased by four years to a maximum of sixteen years.

§ 18-1.3-401(10)(a).

¶ 20 First degree assault is also a per se crime of violence.

§ 18-3-202(2)(c); People v. Banks, 9 P.3d 1125, 1130 (Colo. 2000)

(an offense is a “per se” crime of violence when the statute defining

the offense specifically requires crime of violence sentencing). This

requires “a term of incarceration of at least the midpoint in, but not

more than twice the maximum of, the presumptive range provided

for such offense in section 18-1.3-401(1)(a), as modified for an

extraordinary risk crime pursuant to section 18-1.3-401(10).”

§ 18-1.3-406(1)(a). “[T]he presumptive range is to be modified by

the extraordinary risk crime sentencing statute before calculating a

sentence enhancement” under section 18-1.3-406. People v. Lahr,

2013 COA 57, ¶ 37. Therefore, the maximum sentence for first

degree assault is increased from sixteen to thirty-two years. See

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Howard v. People, 2020 CO 15, ¶ 20 n.10 (“[B]ecause first-degree

assault is a crime of violence, the maximum sentence here was

enhanced by four years, so the presumptive sentence was four to

sixteen years. . . . And because the crime of violence statute directs

the court to impose a sentence ‘of at least the midpoint in, but not

more than twice the maximum of, the presumptive range,’ Howard’s

applicable sentencing range . . . was ten to thirty-two years.”)

(citation omitted).

¶ 21 Because the maximum aggravated sentence Smith was subject

to was thirty-two years, Smith’s twenty-eight-year DOC sentence is

not illegal.

¶ 22 Smith nonetheless asserts that he is not subject to

extraordinary risk crime sentencing for a multitude of reasons.

¶ 23 First, he argues that his sentence cannot exceed twenty-four

years because “any ‘extraordinary mitigating and aggravating

circumstances’ are in fact encompassed within subsection (6) of

C.R.S. § 18-1.3-401(1)(V)(A), (6).” But sentence enhancement for

extraordinary risk crimes is governed by section 18-1.3-401(10)(a),

not sections 18-1.3-401(1)(V)(A) or 18-1.3-401(6).

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¶ 24 Second, Smith asserts that section 18-1.3-401(10)(a) “does not

apply here as [he] was not sentenced under C.R.S. § 18-1.3-401(8);

as required by C.R.S. § 18-1.3-406(1)(a).” However, section

18-1.3-401(10)(a) is applicable here because it applies to “[a]ny

crime of violence, as defined in section 18-1.3-406.”

§ 18-1.3-401(10)(b)(XII). And first degree assault is a crime of

violence under section 18-1.3-406(2)(a)(II)(C). Furthermore,

“convict[ion] of a crime of violence under section 18-1.3-406” is

considered an “extraordinary aggravating circumstance[]” under

section 18-1.3-401(8)(a)(I), and a person convicted of a crime of

violence “shall be sentenced pursuant to section 18-1.3-401(8).”

§ 18-1.3-406(1)(a).

¶ 25 Third, Smith claims that he “was never charged by separate

count as required by subsection (3) and (5) of C.R.S. § 18-1.3-406.”

Section 18-1.3-406(3) states that, “[i]n any case in which the

accused is charged with a crime of violence as defined in subsection

(2)(a) of this section, the indictment or information shall so allege in

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a separate count.”1 However, per se crimes of violence “require[]

mandatory sentencing as prescribed for crimes of violence, without

regard for compliance with the special pleading and proof

requirements of the violent crime statute.” People v. Austin, 2018

CO 47, ¶ 8. Because first degree assault is a per se crime of

violence under § 18-3-202(2)(c), the prosecution was not required to

charge Smith with a separate crime of violence count.

¶ 26 Fourth, citing People v. Kyle, 111 P.3d 491 (Colo. App. 2004),

disapproved of on other grounds in Zoll v. People, 2018 CO 70, Smith

argues that section 18-1.3-401 “does not apply because it is

inapplicable to offenses committed after November 1, 1998.” But

his reliance on Kyle is misplaced. True, the division concluded that

“defendant was incorrectly sentenced under the extraordinary risk

enhancement provision in § 18-1.3-401(10) because it is

inapplicable to offenses committed after November 1, 1998.” Kyle,

111 P.3d at 507. But this was strictly because of the fact that the

Colorado Sex Offender Lifetime Supervision Act eliminated the

1 Section 18-1.3-406(5) applies to sexual offenses that are crimes of

violence and is therefore not applicable to Smith’s first degree
assault conviction.

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extraordinary risk sentence enhancement under section

18-1.3-401(10) for sex offenses committed after the Act’s effective

date of November 1, 1998. Id. at 506. Smith is challenging the

sentence for his first degree assault conviction, not a sexual offense.

Therefore, Kyle and its holding are inapplicable.

¶ 27 Fifth, citing People v. Tillery, 231 P.3d 36 (Colo. App. 2009),

aff’d sub nom. People v. Simon, 266 P.3d 1099 (Colo. 2011), Smith

asserts that section 18-1.3-401(10) “also does not apply to crimes of

violence that are, or stem from sexual offenses.” But Tillery is

inapposite. In Tillery, the division concluded that “legislative

history clearly indicates an intent not to apply section

18-1.3-401(10) to crimes of violence that are sexual offenses.”

Tillery, 231 P.3d at 52. Again, Smith is challenging the sentence for

his first degree assault conviction, not a sexual offense. Tillery does

not apply to him.

¶ 28 Sixth, Smith argues that “there was no weapon involved in

this case, no physical injury, and no hospitalization.” However,

Smith waived the establishment of a factual basis for first degree

assault with a deadly weapon causing serious bodily injury, which

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is an extraordinary risk crime under section 18-1.3-401(10).

Therefore, his claim fails.

¶ 29 Finally, Smith asserts that “it is clear that no elements exist

outside of the elements of the charged crimes themselves” and

“[t]hus no extraordinary aggravating circumstances actually exist.”

But the fact that first degree assault is a crime of violence indicates

the presence of an “extraordinary aggravating circumstance[]” under

section 18-1.3-401(8)(a). Furthermore, as discussed, first degree

assault is an extraordinary risk crime under section 18-1.3-401(10).

¶ 30 For these reasons, we conclude that the district court did not

err by denying Smith’s illegal sentence claim.

III. Disposition

¶ 31 The order is affirmed.

JUDGE FOX and JUDGE SCHUTZ concur.

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