People v. Loveall, No. 05CA2031.

• Decision Date: 20 March 2008
• Docket Number: No. 05CA2031.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jeffery Allen LOVEALL, Defendant-Appellant.
• Court: Colorado Court of Appeals

203 P.3d 540

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jeffery Allen LOVEALL, Defendant-Appellant.

No. 05CA2031.

Colorado Court of Appeals, Division I.

March 20, 2008.

Rehearing Denied May 8, 2008.

Douglas K. Wilson, Colorado State Public Defender, Kathleen A. Lord, Chief Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge RUSSEL.

Defendant, Jeffery Allen Loveall, appeals the order revoking his sentence to probation and imposing a new sentence to prison. We reverse and remand with directions.

I. Background

Loveall entered an Internet chat room and sent sexually explicit messages to a deputy sheriff who was pretending to be a fourteen-year-old girl named Sarah. After exchanging photographs via email, Loveall invited "Sarah" to meet at a shopping mall so that they could go to a hotel for sex. When Loveall arrived for the meeting, he was arrested and charged with criminal offenses.

Loveall pled guilty to enticement of a child, a class four felony, and a misdemeanor offense that is not at issue in this appeal. He received a deferred sentence for enticement of a child.

In March 2003, the court revoked Loveall's deferred sentence and entered a conviction for enticement of a child. The court sentenced Loveall to probation for a term of ten years to life. Loveall did not appeal his conviction or sentence.

In 2004, the People filed a motion to revoke Loveall's probation. After conducting an evidentiary hearing, the court found that Loveall had violated conditions that required him to (1) avoid contact with children, (2) remain in sex offender treatment, and (3) maintain employment. The court revoked Loveall's probation and imposed an indeterminate prison sentence of two years to life.

Loveall now appeals the order revoking his probation. He challenges his underlying conviction and the revocation proceedings. We reject his attack on the conviction but agree that the order must be reversed for errors in the revocation hearing.

II. Attack on the Conviction

Loveall contends that the trial court should not have sentenced him to prison for enticement of a child because that conviction is invalid for two reasons:

1. A court cannot order a deferred sentence for enticement of a child. Therefore, Loveall's guilty plea was induced by the promise of an illegal sentence.

2. A court may order a deferred sentence only if the defendant is represented by counsel, and Loveall was pro se at all relevant times. Because the court lacked authority to order a deferred sentence in the first place, it necessarily lacked authority to revoke the deferred sentence and enter a conviction.

Because this is not a direct appeal from the judgment of conviction, Loveall's contentions are in the nature of a collateral attack and are subject to the three-year time limit set forth in section 16-5-402(1), C.R.S.2007. See People v. Wiedemer, 852 P.2d 424, 430 (Colo.1993) (for purposes of the time bar statute, a collateral attack includes a postconviction motion to set aside a judgment as well as a motion to suppress a conviction). Loveall could have presented these contentions to the trial court during the 2004 revocation proceeding or in a postconviction motion filed before March 2006 (three years from the date on which the court entered the judgment of conviction). But Loveall did not present these contentions to the trial court.

Loveall argues that his contentions may be raised for the first time on appeal because they are based on assertions that the trial court acted without jurisdiction. See People v. Heredia, 122 P.3d 1041, 1043 (Colo.App. 2005) ("Jurisdictional issues may be raised at any time, including for the first time on appeal."). Assuming, without deciding, that Loveall's contentions present jurisdictional issues, we consider and reject them as follows.

A. Deferred Sentences and the Lifetime Supervision Act

Loveall contends that the trial court lacked authority to order a deferred sentence because it was required to impose an indeterminate prison term under the Sex Offender Lifetime Supervision Act. He is incorrect.

When a defendant is sentenced for enticement of a child, the court must impose an indeterminate prison term under the Lifetime Supervision Act. See §§ 18-1.3-1003(5)(a)(VII), -1004(1)(a), C.R.S.2007. But this sentencing statute does not preclude a presentence remedy, such as a deferred sentence under section 18-1.3-102, C.R.S.2007. The legislature has recognized that a court may order a deferred sentence for enticement of a child. See § 18-3-305(3), C.R.S. 2007 (court must report a violation of enticement of a child when a school district employee "is convicted, pleads nolo contendere, or receives a deferred sentence for a violation of the provisions of this section" (emphasis added)). Until the defendant is sentenced, the Lifetime Supervision Act does not apply.

B. Deferred Sentences for Pro Se Defendants

Loveall also contends that a trial court may order a deferred sentence only if the defendant is represented by counsel. He relies on the following language in the deferred sentence statute:

In any case in which the defendant has entered a plea of guilty, the court accepting the plea has the power, with the written consent of the defendant and his or her attorney of record and the district attorney, to continue the case for a period not to exceed four years from the date of entry of a plea to a felony. . . .

§ 18-1.3-102(1), C.R.S.2007 (emphasis added).

We reject this contention under the doctrine of constitutional doubt. See Almendarez-Torres v. United States, 523 U.S. 224, 237-38, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (doctrine of constitutional doubt requires that a statute "be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score" (quoting United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658, 60 L.Ed. 1061 (1916))); Fields v. Suthers, 984 P.2d 1167, 1172 (Colo.1999) (recognizing the "duty to construe statutes in a way that does not raise constitutional concerns"). If interpreted as Loveall suggests, section 18-1.3-102 would prevent all pro se defendants from gaining the benefit of deferred sentences and thus would be of doubtful constitutionality under the provisions that guarantee equal protection and the right of self-representation. See People v. Arguello, 772 P.2d 87, 92 (Colo.1989) (right of self-representation is a corollary to the Sixth Amendment right to counsel) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)).

We therefore conclude that section 18-1.3-102 requires the written consent of defense counsel only if the defendant is represented. Because Loveall was pro se at all relevant times, counsel's consent was not required.

Loveall has anticipated our conclusion and has advanced a subsidiary argument alleging flaws in his waiver of the right to counsel. We decline to address this argument because it was never presented to the trial court and does not implicate the court's jurisdiction. Cf. People v. Gardner, 55 P.3d 231, 235 (Colo.App.2002) (declining to address arguments raised for the first time in a postconviction appeal).

III. Probation Revocation

Loveall next challenges the revocation proceedings. He contends that the trial court's reliance on double and triple hearsay deprived him of his due process right to confront adverse witnesses. We agree.

A. Due Process Requirements

A probationer has no Sixth Amendment right of confrontation in revocation hearings. People v. Turley, 109 P.3d 1025, 1026 (Colo.App.2004). Nevertheless, he or she is entitled to certain due process protections, including "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (stating the minimum requirements of due process for parole revocations); see also Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (applying the Morrissey standard to probation revocations). In Colorado, the probationer also must be given a "fair opportunity to rebut [the prosecution's] hearsay evidence." § 16-11-206(3), C.R.S.2007.

Divisions of this court appear to have differed on whether a trial court must find good cause before denying a probationer's right of confrontation. In People in Interest of T.M.H., 821 P.2d 895, 896-97 (Colo.App. 1991), and People v. Thomas, 42 Colo.App. 441, 443, 599 P.2d 957, 958 (1979), divisions reversed revocation orders where the evidence consisted entirely of hearsay and the trial court failed to find good cause to deny confrontation. More recently, however, divisions have suggested that a trial court need not find good cause if the alleged violation is something other than a new criminal offense. See People v. Moses, 64 P.3d 904, 908 (Colo. App.2002); People v. Kelly, 919 P.2d 866, 868 (Colo.App.1996); see also People v. Manzanares, 85 P.3d 604, 610 (Colo.App.2003) (appeal from revocation of deferred sentence).

To resolve this apparent tension, we have consulted decisions from other jurisdictions. And we conclude that the probationer's right of confrontation does not depend on the nature of the underlying allegation. All probationers have a right to confront adverse witnesses under the due process principles identified in Morrissey.

In determining whether there is good cause to deny confrontation, trial courts should consider whether the proffered hearsay evidence is reliable. If the evidence is substantially reliable, the court may deny confrontation for that reason alone. See United States v. Kelley, 446 F.3d 688, 692 (7th Cir.2006) (if the hearsay evidence "bears substantial guarantees of trustworthiness, then the need to show good cause vanishes" (quoting Egerstaffer v. Israel, 726 F.2d 1231, 1234 (7th Cir.1984))); ...