Peo v. Loveday

• Court: Colorado Court of Appeals
• Decided: May 29, 2025
• Docket: 24CA0881
• Status: Unpublished

Opinion

24CA0881 Peo v Loveday 05-29-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0881 La Plata County District Court No. 12CR368 Honorable Kim S. Shropshire, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Harold Leo Loveday,

Defendant-Appellant.

ORDER AFFIRMED

Division III Opinion by JUDGE BROWN Dunn and Schock, JJ., concur

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

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

Harold Leo Loveday, Pro Se ¶1 Defendant, Harold Leo Loveday, appeals the district court’s

order denying his postconviction motion. He contends that the

district court lacked jurisdiction to enter a judgment of conviction

against him. We affirm.

I. Background

¶2 The prosecution charged Loveday by grand jury indictment1 of

one count of sexual assault on a child by one in a position of trust

as a pattern of abuse under section 18-3-405.3(1), (2)(b), C.R.S.

2000, one count of incest under section 18-6-301, C.R.S. 2000, and

two counts of sexual assault on a child less than fifteen years old

under section 18-3-405(1), C.R.S. 2000.2 A jury convicted him as

charged.

¶3 In 2024, Loveday filed a motion essentially requesting

postconviction relief under Crim. P. 35(c)(2)(III) and section

1 Although Loveday expresses some confusion regarding whether he

was charged by a complaint or indictment, the record is clear that he was charged by grand jury indictment. 2 As is common, the grand jury indictment did not specify the

version of the statutes applicable to Loveday’s conduct. Because Loveday was charged for conduct ranging from 2000 to 2010, and the statutes were amended during that time, we cite the version of the statute in effect at the beginning of the charged date range. Loveday does not argue that he was prosecuted under an incorrect version of these statutes.

1 18-1-410, C.R.S. 2024, seeking to vacate his convictions for lack of

subject matter jurisdiction. See People v. Collier, 151 P.3d 668, 670

(Colo. App. 2006) (“The substance of a postconviction motion

controls . . . .”); People v. Washington, 969 P.2d 788, 789 (Colo. App.

1998) (treating a defendant’s postconviction motion seeking to

overturn a conviction on the grounds that the statute defining the

crime was unconstitutional due to the lack of an “enacting clause”

as a Crim. P. 35(c) motion); see also People v. Sandoval, 2016 COA

57, ¶ 47 (a challenge to subject matter jurisdiction may be raised at

any time). The district court denied the motion, and Loveday

appeals.

II. Appellate Jurisdiction

¶4 As an initial matter, the People contend that we lack

jurisdiction over this appeal because Loveday filed his notice of

appeal on May 17, 2024, before the district court had entered a

final appealable order. See C.A.R. 1; People v. Thomas, 116 P.3d

1284, 1285 (Colo. App. 2005) (a final appealable order is a

“jurisdictional prerequisite to appellate review”). We acknowledge

2 that Loveday prematurely filed his notice of appeal,3 but the district

court cured any jurisdictional defect by entering a final order on

August 1, 2024, and the People allege no prejudice as a result of the

early filing. See Woznicki v. Musick, 94 P.3d 1243, 1247 (Colo. App.

2004) (a premature appeal may proceed if the jurisdictional defect is

cured and the appellee suffers no prejudice from the early filing),

aff’d, 136 P.3d 244 (Colo. 2006). Thus, we have jurisdiction and

proceed to the merits of Loveday’s appeal.

III. Subject Matter Jurisdiction

¶5 Loveday contends that the district court lacked subject matter

jurisdiction to enter a judgment of conviction against him because

his indictment was invalid. He argues that the indictment was

invalid because the statutes cited in it were unconstitutional. And

he argues that the statutes were unconstitutional because they

(1) did not contain enacting clauses; (2) did not contain titles; and

(3) were from an unknown authority. We are not persuaded.

3 Recognizing that the appeal was premature, this court issued an

order for Loveday to show cause why the appeal should not be dismissed. Loveday did not timely respond, and the appeal was dismissed, even though the district court had by then entered a final order. Loveday then filed what was construed as a petition for rehearing, and a motions division reinstated the appeal.

3 A. Standard of Review

¶6 We broadly construe pro se pleadings “to ensure that [parties]

are not denied review of important issues because of their inability

to articulate their argument like a lawyer.” Jones v. Williams, 2019

CO 61, ¶ 5.

¶7 We review de novo whether the district court had subject

matter jurisdiction. Dodge v. Padilla, 2023 COA 67, ¶ 9. We also

review de novo the constitutionality of a statute. Dean v. People,

2016 CO 14, ¶ 8. Because we presume statutes are constitutional,

the challenging party bears the burden of proving a statute’s

unconstitutionality beyond a reasonable doubt. Id.

B. The District Court Had Subject Matter Jurisdiction

¶8 “Subject matter jurisdiction concerns a court’s authority to

deal with the class of cases in which it renders judgment.” People v.

Sims, 2019 COA 66, ¶ 14. A court has subject matter jurisdiction

“where it has been empowered to entertain the type of case before it

by the sovereign from which the court derives its authority.” Wood

v. People, 255 P.3d 1136, 1140 (Colo. 2011). Article VI, section 9(1)

of the Colorado Constitution vests district courts with original

4 jurisdiction in all criminal cases. Sims, ¶ 14. Thus, the district

court had the authority to hear Loveday’s criminal case.

¶9 Even if a court has the general authority to hear a case,

however, subject matter jurisdiction must also be properly invoked.

Id. at ¶ 15. In criminal matters, a district court’s jurisdiction is

invoked “by the filing of a legally sufficient complaint, information,

or indictment.” Id. Here, the People invoked the district court’s

jurisdiction by filing the grand jury indictment charging Loveday

with four crimes. See id. at ¶¶ 14-15.

¶ 10 Nonetheless, Loveday contends that the indictment was invalid

because the Colorado Revised Statutes cited in it did not contain

enacting clauses as required by article V, section 18 of the Colorado

Constitution.4 Even construing Loveday’s arguments broadly, see

4 To be sure, a claim that the statutes cited in Loveday’s indictment

are unconstitutional is a claim that could have been raised on direct appeal and would be both time barred and successive. See Crim. P. 35(c)(2)(I), (3)(VII); § 16-5-402(1), C.R.S. 2024. But because the People do not make this argument, and because we conclude that the claim fails on its merits, we will assume without deciding that Loveday has raised a legitimate jurisdictional defect with the indictment. See Crim. P. 35(c)(3)(VII)(d) (excepting claims that the court lacked subject matter jurisdiction from the successiveness bar); § 16-5-402(2)(a) (excepting claims that the court lacked subject matter jurisdiction from the time bar).

5 Jones, ¶ 5, we are not persuaded. The same argument was

addressed and rejected by a division of this court in Washington,

969 P.2d at 789. Although we are not bound by Washington, see

Chavez v. Chavez, 2020 COA 70, ¶ 13 (one division of the court of

appeals is not bound by another), we find it persuasive.

¶ 11 Article V, section 18 of the Colorado Constitution requires that

“[t]he style of the laws of this state shall be: ‘Be it enacted by the

General Assembly of the State of Colorado.’” See also § 2-4-213,

C.R.S. 2024. Underlying this constitutional mandate is the “policy

that the citizens of the state must be able readily to verify that such

pronouncements are proper expressions of the legislative authority

of the General Assembly as conferred by the state constitution.”

Washington, 969 P.2d at 790.

¶ 12 We acknowledge that none of the Colorado Revised Statutes

cited in Loveday’s indictment contain an enacting clause. However,

as the division in Washington explained, the Colorado Revised

Statutes are an official compilation of the Session Laws of Colorado,

which are the official publication of the legislature’s enactments.

969 P.2d at 789; see also § 2-5-118(1)(a), C.R.S. 2024. The

Colorado Revised Statutes are “produced to aid the public in

6 locating relevant statutes and ascertaining their precise language

by combining initial enactments, amendments, and repeals into a

single source organized by subject.” Washington, 969 P.2d at 789;

§§ 2-5-101 to -126, C.R.S. 2024 (requiring that all laws of the State

of Colorado be compiled into the Colorado Revised Statutes and

detailing the procedures for doing so). Each section of the Colorado

Revised Statutes is also required to include reference to the

statutory history of the section. § 2-5-102(1)(a), C.R.S. 2024.

¶ 13 At the time of Loveday’s conviction,5 section 18-3-405.3,

proscribing sexual assault on a child by one in a position of trust,

was compiled from the following legislative enactments: Ch. 139,

sec. 16, § 18-3-405.3, 1990 Colo. Sess. Laws 1028; Ch. 314, sec.

33, § 18-3-405.3, 1998 Colo. Sess. Laws 1444; Ch. 322, sec. 9,

§ 18-3-405.3, 2002 Colo. Sess. Laws 1582; Ch. 318, sec. 192,

§ 18-3-405.3, 2002 Colo. Sess. Laws at 1513; Ch. 119, sec. 3,

§ 18-3-405.3, 2006 Colo. Sess. Laws 413; Ch. 353, sec. 8,

5 We include the Session Laws from each statute’s initial enactment

through the date of Loveday’s conviction in 2014 to comprehensively address his contentions.

7 § 18-3-405.3, 2013 Colo. Sess. Laws 2061. Section 18-3-405.3

refers to each of these Session Laws.

¶ 14 Section 18-6-301, proscribing incest, was compiled from the

following legislative enactments: Ch. 121, sec. 1, § 40-6-301, 1971

Colo. Sess. Laws 448; Ch. 197, sec. 6, § 18-6-301, 1983 Colo. Sess.

Laws 695; Ch. 136, sec. 8, § 18-6-301, 1986 Colo. Sess. Laws 770-

71; Ch. 139, sec. 7, § 18-6-301, 1990 Colo. Sess. Laws 1025-26;

Ch. 369, sec. 32, § 18-6-301, 2000 Colo. Sess. Laws 1847; Ch. 385,

sec. 2, § 18-6-301, 2003 Colo. Sess. Laws 2514. Section 18-6-301

¶ 15 And section 18-3-405, proscribing sexual assault on a child,

was compiled from the following legislative enactments: Ch. 171,

sec. 1, § 18-3-405, 1975 Colo. Sess. Laws 630; Ch. 224, sec. 18,

§ 18-3-405, 1977 Colo. Sess. Laws 962; Ch. 197, sec. 2, § 18-3-

405, 1983 Colo. Sess. Laws 693; Ch. 138, sec. 7, 1986 Colo. Sess.

Laws 777; Ch. 163, secs. 2, 3, § 18-3-405, 1989 Colo. Sess. Laws

903-04; Ch. 139, sec. 25, § 18-3-405, 1990 Colo. Sess. Laws 1033;

Ch. 240, sec. 11, § 18-3-405, 1995 Colo. Sess. Laws 1252-53; Ch.

322, sec. 8, § 18-3-405, 2002 Colo. Sess. Laws 1582; Ch. 318, sec.

191, § 18-3-405, 2002 Colo. Sess. Laws 1513; Ch. 119, sec. 2, § 18-

8 3-405, 2006 Colo. Sess. Laws 413; Ch. 353, sec. 9, § 18-3-405,

2013 Colo. Sess. Laws 2061-62. Section 18-3-405 refers to each of

these Session Laws.

¶ 16 Each of the acts creating or amending each of the relevant

statutes, as published in the Colorado Session Laws, begins with

the enacting clause required by article V, section 18 of the Colorado

Constitution. As the division in Washington noted, each statute

published in the Colorado Revised Statutes does not itself contain

an enacting clause because it “is, as intended, a compilation of

multiple legislative acts that also includes editing for clarity and

consistency.” 969 P.2d at 789.

¶ 17 Furthermore, although the Colorado Revised Statutes are the

official compilation of the laws, nothing prevents a court from

looking to the Session Laws to confirm that the statute complies

with the constitutional mandate. See id. at 790 (“[W]hen the

propriety of a statute’s enactment is called into doubt, § 2-5-118

does not preclude the use of the Session Laws as evidence in the

Colorado courts.”). Here, each of the Session Laws from which each

of the statutes has been compiled has the requisite enacting clause.

Thus, we conclude that the omission of an enacting clause from the

9 Colorado Revised Statutes did not render the statutes cited in

Loveday’s indictment unconstitutional or otherwise invalid.

¶ 18 We are also not persuaded by Loveday’s contention that the

statutes are invalid because they do not contain titles as required

by article V, section 21 of the Colorado Constitution. Under that

section, a bill must contain only one subject and must state that

subject in its title. Colo. Const. art. V, § 21. Here, each of the bills

creating or amending each cited statute contains a single title. See,

e.g., Ch. 353, 2013 Colo. Sess. Laws at 2056 (amending section

18-3-405.3, among many other statutes, and bearing the following

title: “AN ACT CONCERNING METHODS TO PROTECT THE VICTIM

OF A SEXUAL ASSAULT IN CASES WHERE A CHILD WAS

CONCEIVED AS A RESULT OF THE SEXUAL ASSAULT, AND, IN

CONNECTION THEREWITH, MAKING AN APPROPRIATION”).

¶ 19 Nor are we persuaded by Loveday’s contention that the

Colorado Revised Statutes are “of unknown authority” because they

are compiled, edited, and published by a revisor and not by the

legislature. As discussed, the legislature has authorized the

creation of the Colorado Revised Statutes, detailed the procedures

by which they are to be created, and designated them the official

10 compilation of the laws of the State of Colorado. And each year, by

separate constitutionally compliant bill, the annual version of the

Colorado Revised Statutes “is enacted as the positive and statutory

law of general and permanent nature of the state of Colorado” and

is “accepted, approved, ratified, confirmed, and validated” by the

legislature. § 2-5-126(1); see, e.g., Ch. 1, sec. 1, § 2-5-126, 2014

Colo. Sess. Laws 1 (authorizing the enactment of the 2013 Colorado

Revised Statutes). Thus, the authority for the Colorado Revised

Statutes is known: the laws of the State of Colorado. Notably,

Loveday has not identified a discrepancy between the Colorado

Session Laws and the Colorado Revised Statutes cited in his

indictment that might impact his convictions.

¶ 20 Accordingly, we conclude that the Colorado Revised Statutes

cited in Loveday’s indictment are valid and constitutional, that his

indictment validly invoked the jurisdiction of the district court, and

that the district court had subject matter jurisdiction to enter the

judgment of conviction against him. See Dodge, ¶ 9; Dean, ¶ 8.

C. Loveday’s Other Contentions

¶ 21 To the extent Loveday contends that the district court lacked

personal jurisdiction over him or that he was falsely arrested or

11 wrongfully imprisoned, he does not develop those arguments, so we

do not address them further. See People v. Rodriguez-Morelos, 2022

COA 107M, ¶ 49 (declining to address a defendant’s conclusory and

underdeveloped argument), aff’d, 2025 CO 2. In any event, such

claims would be successive because Loveday could have raised

them in a prior appeal or postconviction motion. See Crim. P.

35(c)(3)(VII) (a claim that could have been raised and resolved in a

prior appeal or postconviction proceeding must be denied as

successive unless an enumerated exception applies).

IV. Disposition

¶ 22 We affirm the district court’s order denying Loveday’s

postconviction motion.

JUDGE DUNN and JUDGE SCHOCK concur.