Peo v. Smith

24CA0713 Peo v Smith 12-04-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0713
Arapahoe County District Court No. 16CR2385
Honorable Darren L. Vahle, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ernest Daron Smith,

Defendant-Appellant.

ORDER AFFIRMED

Division A
Opinion by CHIEF JUDGE ROMÁN
Bernard* and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 4, 2025

Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney
General, Denver, Colorado for Plaintiff-Appellee

Law Office of Gary Fielder, Gary D. Fielder, Denver, 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, Ernest Daron Smith, appeals the postconviction

court’s order denying his Crim. P. 35(c) motion without a hearing.

We affirm.

I. Background

¶2 A jury found Smith guilty of one count of attempted first

degree murder and four counts of attempted second degree murder

based on evidence that he fired several bullets near five victims in a

motel parking lot. The judgment of conviction was affirmed by a

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

17CA2245, Oct. 19, 2020) (not published pursuant to C.A.R. 35(e))

(Smith I). The division summarized the facts of the crime as follows:

Four of the victims — Stacey Pena and her
three [teenage and young adult] daughters —
had been residing at the motel with other
family members. On the night of the incident,
as the Penas pulled their van into the parking
lot, a motel guest in room 143 accused them of
damaging his car.

During the ensuing argument, two or three
men emerged from room 143 and one of them
— later identified by the witnesses as Smith —
shot several rounds at the victims’ van. One of
the bullets grazed the shirt of a security guard
[Latrice Wray] who had intervened to try to
de-escalate the argument.

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Police officers quickly arrived at the scene. On
entering room 143, they found the accuser’s
girlfriend, Jennifer Elias, along with Smith,
who was in bed with the blankets pulled up
nearly over his head. A search of the room
uncovered the gun used in the shooting hidden
in a shoe.

Smith I, ¶¶ 3-5.

¶3 The central issue at trial was the identity of the shooter. Wray

and all three Pena sisters identified Smith as the shooter on the

night of the incident, and all three sisters identified him again in

the courtroom. Dtonio Rutherford — a man who emerged from

room 143 with Smith and testified at trial — implicated Smith on

the night of the incident but not at trial. Id. at ¶ 22.

¶4 As relevant here, the division concluded that under the totality

of the circumstances, the trial court had not abused its discretion

by denying Smith’s motion to continue his trial so that he could

secure Elias’s appearance as a witness. Id. at ¶ 18. It further

concluded that Smith was not prejudiced by Elias’s absence

because (1) her alleged testimony was immaterial and largely

introduced through other witnesses; and (2) the evidence against

Smith was overwhelming. Id. at ¶¶ 19-23.

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¶5 Represented by postconviction counsel, Smith filed a Crim. P.

35(c) motion alleging that his trial counsel had provided ineffective

assistance. The postconviction court ordered a response from the

People and denied the motion in a thorough order, generally

concluding that Smith had failed to allege facts demonstrating

prejudice. We agree.

II. Discussion

¶6 As best we understand the postconviction motion and opening

brief, Smith asserts that he is entitled to a hearing on whether he

received ineffective assistance of trial counsel based on claims that

his counsel (1) lacked a coherent strategy of defense and generally

failed to prepare for trial; (2) neglected to endorse an alternate

suspect defense; (3) failed to request additional DNA evidence; and

(4) failed to diligently pursue Elias so that she could testify at trial.

Because Smith points to one key fact in support of the latter three

claims — that Rutherford “was the only other person that could

reasonably be the shooter” — we will address those three claims in

tandem.

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A. Standard of Review and Applicable Law

¶7 We review de novo the denial of a Crim. P. 35(c) motion

without a hearing. People v. Marquez, 2020 COA 170M, ¶ 17. A

district court may deny a Crim. P. 35(c) motion without an

evidentiary hearing if the motion, files, and record of the case

clearly show the defendant is not entitled to relief. Crim. P.

35(c)(3)(IV).

¶8 To adequately allege a claim of ineffective assistance of counsel

under Strickland v. Washington, 466 U.S. 668 (1984), a defendant

must (1) “identify the acts or omissions of counsel that are alleged

not to have been the result of reasonable professional judgment”

(the deficient performance prong), id. at 690; and (2) “assert facts

that, if true, show a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different” (the prejudice prong), People v. Timoshchuk, 2018 COA

153, ¶ 22. A postconviction court may deny an ineffective

assistance claim without conducting a hearing when the supporting

allegations are bare and conclusory; fail to establish either prong of

the Strickland test, even if taken as true; or are directly refuted by

the record. People v. Duran, 2015 COA 141, ¶ 9; see Crim. P.

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35(c)(3)(IV); see also People v. Segura, 2024 CO 70, ¶ 7. However,

when a defendant alleges sufficient facts that, if true, may warrant

relief, the court must hold an evidentiary hearing. People v.

Chalchi-Sevilla, 2019 COA 75, ¶ 7.

B. Deficient Defense Strategy and Preparation for Trial

¶9 First, Smith broadly claimed that his trial counsel lacked a

coherent strategy of defense and failed to prepare for trial. In

support of the deficient performance prong of this claim, Smith

alleged that his counsel did not investigate Wray and the Pena

sisters because counsel erroneously believed that the witnesses

would not appear for trial.

¶ 10 Smith did not, however, explain how counsel’s alleged lack of

preparation for these prosecution witnesses prejudiced his defense.

He did not, for example, point to any deficiency in his trial counsel’s

cross-examinations. Rather, he made only the bare and conclusory

allegation that counsel’s lack of investigation resulted in an

“inability to locate and serve Ms. Elias” — an “inexplicable” error

sufficient to undermine confidence in Smith’s verdict. Even

accepting Smith’s allegation of deficient performance on this claim

to be true, we conclude that his Strickland prejudice allegation is

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insufficient to merit a hearing. See Duran, ¶ 9. To the extent

Smith’s reference to Elias’s testimony is more than bare and

conclusory, we conclude that the reference pertains to a separate

ineffective assistance claim — one that we address below.

C. Deficient Pursuit of Rutherford as an Alternate Suspect

¶ 11 Next, Smith claims that his counsel was ineffective for failing

to pursue a defense that Rutherford was an “obvious” alternative

suspect. He alleges that counsel’s performance was deficient

because counsel did not (1) endorse an alternate suspect defense;

(2) seek to have Rutherford’s DNA collected “for identification

comparison”; or (3) diligently pursue Elias — who would testify that

Rutherford left the motel room with a firearm and that she didn’t

see Smith return with it after the shooting.

¶ 12 Smith did not articulate any particular prejudice as to

counsel’s failure to endorse an alternate suspect defense or to

collect and test Rutherford’s DNA. As to prejudice from the lack of

Elias’s testimony, Smith alleged the following:

Without Ms. Elias’s testimony that Rutherford
was the man in possession of the firearm when
he left the motel room, and that when she
observed Mr. Smith come back to the motel he
neither possessed a firearm nor did he hide

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anything in the room, the jury was left with the
impression that Mr. Smith was the only one
who touched that gun. Ms. Elias’[s] testimony
would have been corroborated by the
information dispatch relayed about the
description of the suspect, as Mr. Rutherford
was wearing a white T-shirt and dark pants.

¶ 13 Even assuming that Smith’s allegations establish deficient

performance, we once again conclude that his allegation of

prejudice does not provide a basis for relief.

¶ 14 First, as recognized by the division on direct appeal, a police

officer spoke to Elias on the night of the shooting. See Smith I,

¶ 20. At trial, the officer testified that after Smith was removed

from room 143, Elias told him that “there wasn’t a gun in the

room.” The officer also testified that nobody reported seeing Smith

enter room 143 with a gun or seeing him hide the gun. We agree

with the division that the officer’s testimony is not significantly

different from alleged testimony by Elias that “when she observed

Mr. Smith come back to the motel he neither possessed a firearm

nor did he hide anything in the room.” And the evidence at trial

clearly established that the gun used in the shooting was in the

same room as Smith when he was arrested shortly after the crime.

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¶ 15 Second, we, like the division on direct appeal and the

postconviction court, perceive overwhelming record evidence of

Smith’s guilt. See Smith I, ¶ 22. In addition to the substantial

eyewitness testimony that Smith was the shooter and Smith’s

proximity to the gun when arrested shortly after the shooting, all

five eyewitnesses at trial told the police that Rutherford was not the

shooter. This record clearly establishes that Smith is not entitled to

relief. See Crim. P. 35(c)(3)(IV).

¶ 16 In light of the marginal value of Elias’s testimony and the

overwhelming evidence of Smith’s guilt, we perceive no reasonable

probability that if counsel had further pursued Rutherford as an

alternate suspect, the result of Smith’s proceeding would have been

different. See Timoshchuk, ¶ 22. Accordingly, we conclude that

Smith failed to sufficiently allege Strickland’s prejudice prong, and

the postconviction court properly denied his motion without a

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

that sometimes, “the trial record reveals evidence of guilt so strong

and so unlikely to have been adversely affected by counsel’s alleged

deficiencies that denial of an ineffective-assistance claim would be

justified without an evidentiary hearing”).

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III. Disposition

¶ 17 The order is affirmed.

JUDGE BERNARD and JUDGE TAUBMAN concur.

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