The People Of The State Of Colo. v. Loveall

• Citation: 231 P.3d 408
• Decision Date: 17 May 2010
• Docket Number: No. 08SC451.,08SC451.
• Parties: The PEOPLE of the State of Colorado, Petitioner/Cross-Respondentv.Jeffery Allen LOVEALL, Respondent/Cross-Petitioner.
• Court: Supreme Court of Colorado

231 P.3d 408

The PEOPLE of the State of Colorado, Petitioner/Cross-Respondentv.Jeffery Allen LOVEALL, Respondent/Cross-Petitioner.

No. 08SC451.

Supreme Court of Colorado En Banc.

May 17, 2010.

COPYRIGHT MATERIAL OMITTED

John W. Suthers, Attorney General, Susan E. Friedman, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Petitioner/Cross-Respondent.

Douglas K. Wilson, Public Defender, Kathleen A. Lord, Chief Appellate Deputy Public Defender, Denver, Colorado, Attorneys for Respondent/Cross-Petitioner.

Justice RICE delivered the Opinion of the Court.

In this appeal, the People seek to reinstate the revocation of Jeffery Loveall's sex offender intensive supervision probation (“SOISP”). Loveall challenges this position and, on cross-petition, attacks the underlying convictions on which the SOISP and his subsequent incarceration are based. The court of appeals reversed the district court's revocation of Loveall's SOISP but rejected his collateral attacks. We affirm.

I. Facts and Proceedings Below

This appeal concerns two convictions entered against Loveall: one count of enticement of a child, § 18-3-305, C.R.S. (2001), and one count of unlawful sexual contact, § 18-3-404(1)(a), C.R.S. (2001). Both convictions stem from the same sequence of events. Via a series of online exchanges taking place between April 4, 2001 and April 14, 2001, Loveall contacted “Sarah,” an undercover police officer who identified herself as a fourteen-year-old girl, and made plans to have sex with her. When Loveall approached “Sarah” at the appointed time and place, he was arrested.

Initially, the People charged Loveall with one count of enticement of a child, a class-four felony, and one count of criminal attempt to commit sexual assault on a child, a class-five felony. Loveall, proceeding pro se, negotiated a plea agreement. In exchange for Loveall's guilty plea to the original enticement charge and a third count of unlawful sexual contact, a class-one misdemeanor, the People agreed to drop the attempt charge and to seek a deferred judgment and sentence (“DJS”) on the remaining felony. The prosecutor who negotiated the plea bargain informed Loveall that, were a conviction to enter on the enticement charge, he would be subject to a presumptive sentence of two years to life.

On January 14, 2002, Loveall executed a Rule 11 advisement, abandoning “all possible defenses to the charge[s]” and waiving his constitutional right to a jury trial and his right “to be represented by a lawyer in all stages of that trial.” On April 1, 2002, the district court entered a four-year DJS for the enticement conviction and a four-year SOISP for the sexual contact conviction. Under the DJS, Loveall agreed to comply with all conditions established by the district court, including: (1) prohibition of contact with children under eighteen years of age,¹ (2) enrollment in and completion of offense-specific treatment, and (3) continued employment and payment of court fees. Additionally, the district court required that Loveall spend sixty days in the Douglas County jail.

Loveall's then-existing employment with the National Guard ended when he began serving the sixty-day prison term. After initially finding short-term employment with a temp agency, the agency discharged Loveall on September 26, 2002 after learning of his felony conviction. Loveall enrolled in a treatment program in Colorado Springs on August 13, 2002 but was terminated on December 16, 2002 for non-compliance.

Jane Ryan, Loveall's primary probation officer, petitioned the district court for revocation of Loveall's DJS, citing violations of the treatment and employment conditions. On March 13, 2003, the district court revoked the DJS and resentenced Loveall to a ten-year SOISP for the enticement charge, subject to the same conditions as the revoked DJS, and a four-year SOISP for the unlawful sexual contact charge. In addition, the district court required Loveall to return to the treatment program and to secure employment within forty-five days.

On June 3, 2003, Ryan reported that Loveall failed to obtain employment or return to treatment as directed. The district court assigned defense counsel to Loveall. At the revocation hearing on August 3, 2003, the district court reinstated the SOISP subject to the same conditions as before. The district court further ordered that Loveall be confined to the Douglas County jail for ninety days less time served.

On October 8, 2003, Loveall enrolled in a treatment program in Cañon City. At the time, Loveall's wife was pregnant. The treatment provider informed Loveall that any contact with children under the age of eighteen including his own children, was prohibited under the stated conditions of his SOISP and the program's treatment contract. To help him prepare for the birth of his child, Loveall and the treatment provider composed a safety plan. In it, Loveall stated that “I will take [my wife] to hospital but not be in [the] birth area.”

On January 5, 2004, Loveall took his wife to St. Thomas Moore Hospital, where his wife gave birth to their child. Shortly afterward, an unnamed probation officer discovered Loveall in the same room as his wife and child and reported this violation to Ryan. The Cañon City treatment provider learned of the violation and immediately terminated Loveall from its program.

A third revocation hearing took place on January 26, 2004. At the hearing, Ryan testified that an unnamed probation officer observed Loveall “in the hospital with his wife ... having contact with the baby.” Ryan also testified that Loveall's courtesy probation officer in Cañon City, Suzanne Woodard, received a letter from Nurse Tiffany McCullough and a letter ² and a phone call from Nurse Nancy Mann,³ confirming Loveall's contact with the newborn. Loveall testified that he was only at the hospital so that he could make vital medical decisions regarding his child's health while his wife was under anesthesia following an emergency caesarian section. According to Loveall, he fell asleep in his wife's room, woke up to find both his wife and the baby present, and was discovered by the probation officer before he could remove himself from their presence.

At the revocation hearing, defense counsel objected to the prosecution's use of the letters as well as to Ryan's testimony regarding the phone conversation between Woodard and Mann. Defense counsel argued that, because the prosecutor did not give him a copy of the letters or otherwise provide the nurses' names until shortly before the revocation hearing, Loveall was denied a reasonable opportunity to cross-examine them.⁴ The court initially excluded both letters, holding that Loveall must be given “a reasonable opportunity to confront” even in the context of a probation revocation hearing, but admitted the testimony regarding Mann's telephone call. On cross-examination, defense counsel questioned Ryan about Mann's telephone allegations.⁵ Toward this end, defense counsel attempted to impeach Ryan's testimony-specifically, Mann's statement that she observed Loveall holding the baby-using Mann's letter. The district court informed defense counsel that he could only use the letter if it was admitted into evidence. Defense counsel agreed to admit the letter for this purpose.

Based on Ryan's testimony, the district court determined that Loveall had violated three conditions of his probation: (1) he had contact with his child at the hospital, (2) he was terminated from sex-offender treatment for breach of the treatment contract, and (3) he failed to find employment. The district court revoked the ten-year SOISP for enticement and resentenced Loveall to a correctional facility for two years to life with credit for time served.⁶

Loveall appealed the revocation of the ten-year SOISP. The court of appeals, having rejected Loveall's attacks on the underlying convictions, held that the district court's admission of hearsay statements without good cause or advance disclosure of the declarants' identities violated Loveall's right to due process. Because the district court improperly relied on hearsay evidence to conclude that Loveall violated the no contact and treatment conditions of his SOISP and because it was unclear whether the district court would have revoked Loveall's SOISP based on his unemployment alone, the court of appeals reversed the revocation and remanded the case to the district court for a new hearing.

II. Issues on Cross-Petition

On cross-petition, Loveall mounts two collateral attacks regarding the validity of his original guilty plea and resulting DJS. Because the issues raised in the People's petition presuppose that the guilty plea and DJS were valid, we consider the issues raised on cross-petition first.

A. Pro Se Defendant's Ability to Enter a DJS

Loveall argues that his plea of guilty to the enticement charge is void for lack of jurisdiction because a court may order a DJS only if the defendant is represented by legal counsel. § 18-1.3-102, C.R.S. (2009). To succeed, Loveall must circumvent the three-year statute of limitations for collateral attacks, § 16-5-402(1), C.R.S. (2009), by treading an alternate path, § 16-5-402(2)(a) (describing the subject matter jurisdiction exception). We deny him passage.

We have held that a district court has jurisdiction if “the case is one of the type of cases that the court has been empowered to entertain by the sovereign from which the court derives its authority.” Paine, Webber, Jackson & Curtis, Inc. v. Adams, 718 P.2d 508, 513 (Colo.1986). The Colorado Constitution provides that district courts, as the trial courts of general jurisdiction, possess original, state-wide jurisdiction in all criminal cases. Colo. Const. art. VI, § 9(1). Of course, the courts' otherwise “unrestricted and sweeping jurisdictional powers” remain subject to legislative restraints and enactments. In re A.W., 637 P.2d 366, 373 (Colo.1981)....