State of Tennessee v. Chrystal Tollison

02/28/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 18, 2017 at Knoxville

STATE OF TENNESSEE v. CHRYSTAL TOLLISON

Appeal from the Criminal Court for White County

No. CR-6506 David Patterson, Judge

No. M2016-00593-CCA-R3-CD

The defendant, Chrystal Tollison, appeals her White County Criminal Court guilty-

pleaded conviction of child neglect, claiming that the trial court erred by denying her bid

for judicial diversion. Discerning no error, we affirm.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY

THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Michael J. Rocco, Sparta, Tennessee, for the appellant, Chrystal Tollison.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant

Attorney General; Bryant C. Dunaway, District Attorney General; and Phillip Hatch,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Originally charged with aggravated child abuse, a Class A felony, the

defendant pleaded guilty to the lesser included offense of child neglect, with the length

and manner of service of the sentence to be determined by the trial court following a

sentencing hearing. The State summarized the facts of the offense at the guilty plea

submission hearing:

The [S]tate would show [that on August 11, 2013]

officers with the Sparta Police Department responded to an

apartment complex here in Sparta, Tennessee. Along with the

TBI, an investigation was conducted on the injuries sustained

by a child, date of birth 12/11/2012. Those injuries included

subdural hem[a]toma and retinal hemorrhaging. The child

was taken to Vanderbilt Hospital, where she was seen by Dr.

Verena Brown.

A history of [the defendant] the previous forty[-]eight

hours leading up to the date of [the offense] indicated that

[the defendant] and her child had been at a family garage sale

that day, the 10th, that the child was in good health with no

medical issues. Brought back to the residence that evening of

the 10th and the following morning [the defendant] stated that

the child fell off of a bed onto a pile of clothes lying on the

floor, sustaining the injuries that were subsequently found at

the hospital.

Based on the testimony of the statement, the [S]tate

met with both the TBI and the police department and met

with Dr. Brown at Vanderbilt and based on her findings, her

testimony, the [S]tate would anticipate to be very consistent

with non-accidental trauma, based on the age of the child and

the lack of any other explained mechanism for the injury.

The trial court accepted the plea and set the case for a sentencing hearing. The defendant

indicated an intent to ask the court for judicial diversion, but no application or motion

appears in the record on appeal.

At the sentencing hearing, Doctor Jennifer Yates, an occupational therapist,

testified that the defendant brought the victim to her clinic for occupational therapy once

a week to address “hypertonicity in her left arm.” Doctor Yates explained that the

hypertonicity caused the victim’s arm “to kind of flex or contract in a little bit” and that

her therapy was designed “to promote that arm to be as functional as possible.” Doctor

Yates said that the defendant was very involved in the victim’s therapy and that the

defendant practiced the therapy techniques with the victim at home. The defendant had

missed only a single appointment in six months.

Doctor Yates described the victim as “the happiest little girl” and stated that

the victim was “making great progress.” She said that her research and experience

indicated that “children, especially children who have disabilities make huge regressions

in their physical skills whenever they . . . lose a parent.” She added that, should the

defendant be incarcerated, “it would be detrimental” to the victim because the victim

“adores” the defendant and because the defendant “works with [the victim] so hard” on

her therapy. Doctor Yates said that the defendant had been proactive in seeking out

therapies for the victim.

-2-

During cross-examination, Doctor Yates explained that the victim suffered

an injury to the right side of her brain, “which affected her left side of her body, causing

increased tone and that’s what we’re working on in physical therapy and occupational

therapy, is helping to normalize that tone as well as just work on developmental skills.”

Doctor Yates said that the defendant’s incarceration would be detrimental to the victim’s

progress.

The 25-year-old defendant testified that on the day of the offense, she had

taken the victim “out of her crib and changed her diaper.” The defendant then went to the

restroom, and while she was in the restroom, the victim fell off the defendant’s bed. The

defendant said that she pleaded guilty because she neglected the victim by leaving her

unattended on the bed.

The defendant said that, as a result of the injuries she sustained in that fall,

the victim “goes to occupational therapy and physical therapy every single week.” The

defendant said that she performed each of the exercises and stretches on the victim as

prescribed by her therapists. As a result, she had seen a “[h]uge improvement” in the

victim’s abilities. The defendant said that she worked to get the victim enrolled in a local

pre-kindergarten program for special needs children and that she took the victim to each

of her scheduled doctor’s appointments.

The defendant testified that she had been consistently employed since

graduating high school and that she was working as a waitress at the time of the

sentencing hearing. She said that she had a home in Cookeville where she lived with the

victim and her older daughter.

At the conclusion of the hearing, the State argued that a grant of judicial

diversion in the defendant’s case would depreciate the seriousness of the offense and that

a sentence of two years’ probation would be more appropriate. The defendant argued

that the court should grant diversion because the defendant had accepted responsibility

for her actions, had been proactive in the victim’s recovery, had maintained employment,

and had established a stable home for her two children. The defendant also argued that

the imposition of a felony conviction would hinder her efforts at finding suitable

employment in the future.

The trial court found that the defendant was amenable to correction, as

evidenced by the fact that “she has got her children back home,” that she had worked

consistently during her adult life, that she had no criminal record, and that she had a

“developed” social history. The court observed that the circumstances of the offense

were particularly troubling, noting that investigators found the defendant’s residence

-3-

“cluttered with clothes, old food,” and “[s]everal empty alcoholic beverage containers”

and that they collected marijuana and a pill crusher from the residence. The court also

noted that the victim had to be flown to Vanderbilt Children’s Hospital due to the

severity of her injuries, which included retinal hemorrhaging in both eyes. The court

found a need to deter similar offenses and noted the particular vulnerability of the eight-

month-old victim and the severity of her injuries as enhancement factors. The court

concluded that a sentence of two years’ probation struck the proper balance between the

needs of the defendant and the victim in this case and the need for deterrence in the

community.

In this timely appeal, the defendant asserts that the trial court erred by

denying her bid for judicial diversion, arguing that the trial court failed to weigh and

consider all the factors relevant to a determination of judicial diversion and that, as a

result, the trial court erred by denying her request for judicial diversion. The State

contends that the trial court appropriately considered all the relevant factors and that the

court’s decision to deny judicial diversion based upon the circumstances of the offense,

the deterrence value[,] and the needs of the community” was justified.

Our standard of review of the trial court’s sentencing determinations in this

case is whether the trial court abused its discretion, but we apply a “presumption of

reasonableness to within-range sentencing decisions that reflect a proper application of

the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707

(Tenn. 2012). The application of the purposes and principles of sentencing involves a

consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of

the defendant . . . in determining the sentence alternative or length of a term to be

imposed.” T.C.A. § 40-35-103(5). Trial courts are “required under the 2005

amendments to ‘place on the record, either orally or in writing, what enhancement or

mitigating factors were considered, if any, as well as the reasons for the sentence, in order

to ensure fair and consistent sentencing.’” Bise, 380 S.W.3d at 706 n.41 (citing T.C.A. §

40-35-210(e)). Under the holding in Bise, “[a] sentence should be upheld so long as it is

within the appropriate range and the record demonstrates that the sentence is otherwise in

compliance with the purposes and principles listed by statute.” Id. at 709. The Bise

standard of review applies to “appellate review for a trial court’s sentencing decision to

either grant or deny judicial diversion,” State v. King, 432 S.W.3d 316, 325 (Tenn. 2014),

and to “questions related to probation or any other alternative sentence,” State v. Caudle,

388 S.W.3d 273, 278-79 (Tenn. 2012).

“Judicial diversion” is a reference to the provision in Tennessee Code

Annotated section 40-35-313(a) for a trial court’s deferring proceedings in a criminal

case. See T.C.A. § 40-35-313(a)(1)(A). Pursuant to such a deferral, the trial court places

the defendant on probation “without entering a judgment of guilty.” Id. To be eligible or

-4-

“qualified” for judicial diversion, the defendant must plead guilty to, or be found guilty

of, an offense that is not “a sexual offense or a Class A or Class B felony,” and the

defendant must not have previously been convicted of a felony or a Class A

misdemeanor. Id. § 40-35-313(a)(1)(B)(i)(b), (c). Diversion requires the consent of the

qualified defendant. Id. § 40-35-313(a)(1)(A). “[A] ‘qualified’ defendant is not

necessarily entitled to diversion. Whether to grant judicial diversion is left to the

discretionary authority of the trial courts.” King, 432 S.W.3d at 326. Following a

determination that the defendant is eligible for judicial diversion, the trial court must

consider

“(a) the accused’s amenability to correction, (b) the

circumstances of the offense, (c) the accused’s criminal

record, (d) the accused’s social history, (e) the accused’s

physical and mental health, and (f) the deterrence value to the

accused as well as others. The trial court should also consider

whether judicial diversion will serve the ends of justice—the

interests of the public as well as the accused.”

Id. (quoting State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996)). “Further,

the trial court must weigh the factors against each other and place an explanation of its

ruling on the record.” King, 432 S.W.3d at 326 (citing State v. Electroplating, Inc., 990

S.W.2d 211, 229 (Tenn. Crim. App. 1998)). Adoption of the Bise standard of review for

judicial diversion “did not abrogate the requirements set forth in Parker and

Electroplating, which are essential considerations for judicial diversion.” King, 432

S.W.3d at 326.

Because the record establishes that the trial court considered each of the

factors enumerated in Parker and weighed them against each other, placing its findings in

the record, as required by Electroplating, Inc., we “apply a presumption of

reasonableness” and will “uphold the grant or denial so long as there is any substantial

evidence to support the trial court’s decision.” Id. at 327. Based upon our review of the

record, we conclude that there was substantial evidence to support the denial of judicial

diversion in this case. The record establishes that the eight-month-old victim suffered

serious bodily injuries, including a retinal tear in her right eye, retinal hemorrhaging in

both eyes, and a “rotational injury” in her brain, while in the care of the defendant and

that those injuries have resulted in the victim’s being permanently disabled. Although the

defendant maintained that the victim’s injuries occurred when she fell from the

defendant’s bed, the official version of events included in the presentence report indicates

that the treating physician advised detectives “that the injuries sustained by [the victim

are] not consistent with a short fall from a bed” but were instead “consistent with acute

inflicted injury.” The defendant’s efforts at improving her life and helping the victim are

-5-

laudable, but the record is clear that the defendant has already been granted considerable

leniency in this case. The plea agreement in this case allowed the defendant, who was

originally charged with aggravated child abuse, to plead guilty to a greatly reduced

charge of child neglect. The charged offense, a Class A felony, carried a potential

sentence of 15 to 25 years with a 70 percent release eligibility percentage. See T.C.A. §§

39-15-402(b); 40-35-112(a)(1); 40-35-501(k)(6)(A). In contrast, the conviction offense,

a Class E felony, carries only a potential sentence of 1 to 2 years with a 30 percent

release eligibility percentage. See id. §§ 39-15-401(b); 40-35-112(a)(5); 40-35-501(c).

That the defendant received a very beneficial plea agreement “colors the nature and

circumstances of the conviction offense.” State v. John Clayton Fields, No. M2014-

01691-CCA-R3-CD, slip op. at 9 (Tenn. Crim. App., Nashville, July 6, 2015), perm. app.

denied (Tenn. Oct. 23, 2015) (emphasis in original). We have consistently “recognized

that leniency in the terms of a plea agreement may support the imposition of a formidable

sentence.” See id., slip op. at 9-10; see also, e.g., State v. Krystal Bowman, No. E2011-

01906-CCA-R3-CD (Tenn. Crim. App., Knoxville, Aug. 13, 2012); State v. Larry J.

Coffey, Jr., No. E2008-00087-CCA-R3-CD (Tenn. Crim. App., Knoxville, Feb. 18,

2009). Moreover, the sentence imposed in this case, two years’ full probation, cannot be

described as “formidable.” Under these circumstances, the trial court did not abuse its

discretion by denying judicial diversion.

Accordingly, we affirm the judgment of the trial court.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

-6-