State of Tennessee v. Christopher Colligan

07/12/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 19, 2019

STATE OF TENNESSEE v. CHRISTOPHER COLLIGAN

Appeal from the Criminal Court for Davidson County

No. 2014-I-651 Seth W. Norman, Judge

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No. M2018-01443-CCA-R3-CD

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Defendant, Christopher Colligan, appeals following the trial court’s revocation of his

eight-year community corrections sentence. Defendant contends that the trial court erred

by failing to award sentencing credit for his time served in the community corrections

program from June 27, 2014, to March 29, 2017, and from October 4, 2017, to April 27,

2018. Following a thorough review, we affirm the judgment of the trial court, as

modified, and remand for entry of an amended judgment awarding sentencing credits

from October 4, 2017, to April 27, 2018.

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

Modified; Case Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN

EVERETT WILLIAMS, P.J., and D. KELLY THOMAS, JR., J., joined.

Martesha L. Johnson; District Public Defender; and Jeffrey A. DeVasher (on appeal) and

Tanner Gibson (at hearing), Assistant District Public Defenders, for the appellant,

Christopher Colligan.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant

Attorney General; Glenn Funk, District Attorney General; and Paul DeWitt, Assistant

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

OPINION

On June 27, 2014, Defendant pled guilty to sale of a Schedule I controlled

substance in the Criminal Court for Davidson County.1 Pursuant to a plea agreement, the

trial court sentenced him as a Range I standard offender to an eight-year sentence to be

served on community corrections. The trial court further ordered that Defendant

complete the residential program of the Davidson County Drug Court. It appears from

the record that Defendant remained in custody from the time of his arrest on April 28,

2014, until October 3, 2014, when a bed became available for him at the in-patient

treatment facility. On August 23, 2016, based on “the recommendation of the

Community Corrections Program of Davidson County to transfer [] Defendant . . . from

the Davidson County Community Corrections Program to Probation Supervision,” the

trial court entered an order finding that Defendant had “successfully complied with the

rules and regulations of the Tennessee Community Corrections Act and the Davidson

County Community Corrections Program” and transferring Defendant “to Field Services,

Tennessee Department of Correction and under supervised probation.” The trial court

ordered Defendant to “abide by the rules and regulation of the Field Services, Tennessee

Department of Correction.”

On March 29, 2017, the trial court issued a “Violation of Probation” warrant (“the

first violation warrant”). The affidavit upon which the first violation warrant was based

alleged that Defendant had violated the terms of his probation by using cocaine, heroin,

and Roxicodone. The first violation warrant was served on Defendant on June 8, 2017.

Following a hearing on September 6, 2017, during which Defendant conceded the

violation, the trial court took the matter under advisement and reset the case to October 4,

2017. On that date, the trial court found that Defendant had violated the terms and

conditions of probation and announced:

. . . I’m [going to] tell you what the deal is, it’s a two-way deal.

[Defendant] can either go serve[] his time or he can waive every minute and

every second of street time and jail time he’s got, and start an [eight]-year

sentence on Community Corrections all over again. That’s the deal. You

better take him back there and explain to him what he’s fixing to do to

himself, if he agrees to the deal. Because if he walks back in this program,

he’s [going to] serve the whole eight years. You better take him back there

and talk to him. That’s the only way I’ll even consider it.

1

The indictment, plea petition, and transcript reflect that Defendant was charged with and

pleaded guilty to sale of a Schedule I controlled substance. However, the original judgment and court

minutes indicate a plea to delivery of a Schedule I controlled substance. Both sale and delivery of a

controlled substance are proscribed by Tennessee Code Annotated section 39-17-417. See Tenn. Code

Ann. §§ 39-17-417(a)(2) (delivery), 39-17-417(a)(3) (sale).

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Following consultation with counsel, Defendant announced that he would “like to

restart his eight-year sentence[.]” The trial court revoked Defendant’s sentence and

ordered that Defendant be placed back on community corrections for eight years. An

amended judgment (“the first amended judgment”) entered on October 4, 2017, indicated

that Defendant’s eight-year sentence was revoked to time-served and that his sentence

was “restarted” on community corrections. The first amended judgment also reflected

that Defendant would “not receive any credit for time in community corrections (‘street

time’)[.]” Defendant did not appeal from this amended judgment.

Over six months later, on April 27, 2018, the trial court issued a warrant for a

“Violation of Community Corrections Program” based upon allegations that Defendant

“tested positive for [a]mphetamine and [h]eroin . . . and admitted to using [h]eroin” (“the

second violation warrant”). On May 16, 2018, the trial court issued an amended warrant

for a “Violation of Community Corrections Program,” following allegations that

Defendant failed to report and was “now considered an absconder” (“the third violation

warrant”). The warrants were served on Defendant on May 18, 2018.

A hearing on the second and third violation warrants was conducted on July 11,

2018. Defendant made an oral motion for the trial judge to recuse himself based upon

comments the trial judge allegedly made about Defendant in a meeting between defense

counsel, the prosecutor, and the trial judge in the judge’s chambers prior to the start of the

hearing. The trial court denied the motion to recuse and denied Defendant’s request for a

continuance to file a written motion to recuse.

Defendant testified that he relapsed and started using heroin and amphetamines

again. The trial court found that Defendant had violated the terms and conditions of his

community corrections sentence and ordered that Defendant’s eight-year sentence be

placed into effect. On the same day, the trial court entered an amended judgment (“the

second amended judgment”) to reflect the revocation of Defendant’s community

corrections sentence, which noted that Defendant was to receive credit for “period in jail”

but no credit for “street time[.]” The second amended judgment indicated that Defendant

was granted jail credit for the following days: April 28, 2014 to October 3, 2014; June 9,

2017 to October 4, 2017; and May 18, 2018 to July 11, 2018.2 On July 24, 2018,

Defendant filed a Motion to Vacate Judgment and Incorporated Motion to Recuse, which

the trial court denied in a written order filed August 3, 2018. This timely appeal follows.

2

At the conclusion of the hearing on the first violation warrant, Defendant agreed to waive his

sentencing credits for time served in jail in addition to his “street time” on community corrections;

however, the trial court apparently credited him for time served in jail in the second amended judgment.

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Analysis

On appeal, Defendant contends that the trial court erred in “ordering” that he

surrender the “street time” sentencing credits he earned while serving his community

corrections sentence.3 He argues that he is entitled to credit “for actual time served in the

community-based alternative program” and asserts that those credits are mandatory and

that the trial court had no authority to deny him the sentencing credits. Defendant further

argues that the trial court’s failure to award credit for time actually spend on community

corrections contravenes Tennessee Code Annotated section 40-36-106, resulting in an

illegal sentence, and that his agreement to surrender the sentencing credits is immaterial

because there “can be no plea bargain to an illegal sentence.”

The State agrees that Defendant is entitled to credit for time served on community

corrections from October 4, 2017, when the amended judgment restarting his community

corrections sentence was entered, to April 27, 2018, when the second violation warrant

was issued. The State asserts, however, that Defendant is not entitled to sentencing credit

for the time Defendant served on community corrections before October 4, 2017, because

the trial court and Defendant “agreed to a new, eight-year community corrections

sentence, which included a waiver of his street and jail time.” The State argues that, by

this agreement, the trial court “effectively resentenced [D]efendant to a longer term,

which it was authorized to do” under Tennessee Code Annotated section 40-36-106(e)(4).

The State contends that the trial court “simply used the waiver of street time to

approximate the appropriate length of the longer sentence.” The State further responds

that the amended judgment entered on October 4, 2017, did not create an illegal sentence

and that, to the extent Defendant now seeks relief from the October 4th judgment, his

appeal is “grossly untimely.”

Tennessee Code Annotated section 40-36-106 provides that a trial court may

sentence an eligible defendant “to any appropriate community-based alternative to

incarceration provided in accordance with the terms of this chapter, and under the

additional terms and conditions as the court may prescribe, in lieu of incarceration in a

3

In his original brief to this court, Defendant also argued that the trial court erred in denying the

Motion to Vacate Judgment and Incorporated Motion to Recuse. Defendant asked that the court vacate

the trial court’s judgment and remand the case for a new community corrections violation hearing before

a different trial judge. Defendant alternatively argued that the trial court abused its discretion in revoking

his community corrections sentence and asked this court to modify the trial court’s judgment by

reinstating his community corrections sentence. However, following the filing of the State’s brief,

Defendant filed a reply brief in which he stated that he “no longer wishe[d] to have his community

corrections sentence reinstated” and, “therefore[,] no longer wishe[d] to pursue on appeal the issues of

whether the trial court should have recused itself and whether the trial court abused its discretion in

revoking his community corrections.” As such, these claims are waived, and we will address only

Defendant’s remaining issue regarding the trial court’s failure to award appropriate sentencing credits.

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state penal institution or local jail or workhouse.” Tenn. Code Ann. § 40-36-106(e)(1)

(2014). In sentencing a defendant to community corrections, a trial court has the

authority “to set the duration of the sentence for the offense committed at any period of

time up to the maximum sentence within the appropriate sentence range[,]” and the trial

court retains the power “to alter or amend at any time the length, terms or conditions of

the sentence imposed.” Tenn. Code Ann. § 40-36-106(e)(2) (2014). Additionally, the

trial court may revoke a defendant’s community corrections sentence

at any time due to the conduct of the defendant or the termination or

modification of the program to which the defendant has been sentenced,

and the court may resentence the defendant to any appropriate sentencing

alternative, including incarceration, for any period of time up to the

maximum sentence provided for the offense committed, less any time

actually served in any community-based alternative to incarceration. The

resentencing shall be conducted in compliance with § 40-35-210.

Tenn. Code Ann. § 40-36-106(e)(4) (2014) (emphasis added). “[A] defendant whose

community corrections sentence is revoked is entitled to credit toward the sentence for

time spent in community corrections prior to revocation.” Carpenter v. State, 136

S.W.3d 608, 612 (Tenn. 2004) (citing Tenn. Code Ann. § 40-36-106(e)(4)); see also

Tenn. Code Ann. § 40-36-106(e)(3)(B) (2014) (stating that an offender serving a

community corrections sentence is entitled to credit “for actual time served in the

community-based alternative program”). “The award of credit for time served on

community corrections is mandatory, and the trial court has no authority to deny credit no

matter how lackluster or unsuccessful the defendant’s performance.” Jackson v. Parker,

366 S.W.3d 186, 190 (Tenn. Crim. App. 2011) (internal quotation marks omitted); see

also State v. McNack, 356 S.W.3d 906, 910 (Tenn. 2011) (“Our courts have held that the

language of the statute as to sentence credits is mandatory, not discretionary.”).

It is undisputed that from the date of the first amended judgment, October 4, 2017,

to the filing of the second violation warrant on April 27, 2018, Defendant was serving his

sentence in a community-based alternative program, and the State concedes that the trial

court should have credited Defendant with that time upon the revocation of Defendant’s

community corrections sentence. We agree with the State’s concession and conclude that

Defendant is entitled to credit toward his sentence for time spent in community

corrections from October 4, 2017, to April 27, 2018. See Tenn. Code Ann. § 40-36-

106(e)(4); Carpenter, 136 S.W.3d at 612.

The issue of whether Defendant is also entitled to credit from time served on

community corrections from October 3, 2014, to the filing of the first violation warrant

on March 29, 2017, presents a more difficult question. During a hearing on the first

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violation warrant, Defendant conceded the violation, and the trial court revoked

Defendant’s community corrections sentence. Upon revocation of community

corrections, the trial court should have credited Defendant for the actual time served on

community corrections up to the filing of the first violation warrant, i.e., from October 3,

2014, to March 29, 2017. See id. Instead, the first amended judgment reflected that

Defendant’s eight-year sentence was revoked to time-served, that his sentence was

“restarted” on community corrections, and that Defendant received no credit “for time in

community corrections (‘street time’)[.]”

The State argues, however, that the trial court essentially resentenced Defendant

based on Defendant’s agreement to begin a new eight-year sentence and that the trial

court used Defendant’s waiving of his “street time” “to approximate the appropriate

length of the longer sentence.” Although the trial court had the authority to resentence

Defendant pursuant to Tennessee Code Annotated section 40-36-106(e)(4), any

resentencing should have been conducted in compliance with Tennessee Code Annotated

section 40-35-210. Tenn. Code Ann. § 40-36-106(e)(4); State v. Samuels, 44 S.W.3d

489, 494 (Tenn. 2001). Although “[a] formal sentencing hearing or revocation hearing . .

. is not required when a defendant concedes that he violated the terms of the community

corrections sentence and elects to accept, knowingly and voluntarily, an increased

sentence by agreement with the State[,]” State v. Ronnie Walls, No. M2018-00903-CCA-

R3-CD, 2019 WL 2183774, at *3 (Tenn. Crim. App. May 21, 2019), the question of

whether the hearing held by the trial court constituted an appropriate resentencing hearing

or whether Defendant knowingly and voluntarily accepted an increased sentence is not

before this court. Defendant never appealed the trial court’s October 4, 2017, ruling

which resulted in the first amended judgment. The instant appeal arises from the trial

court’s revocation of Defendant’s community corrections sentence resulting in the second

amended judgment. By failing to appeal the October 4, 2017 revocation, Defendant

effectively waived these issues.

Nevertheless, Defendant argues that this court may address the trial court’s failure

to award credit for the time served on community corrections from October 3, 2014, to

March 29, 2017, because this failure created an illegal sentence. The Tennessee Supreme

Court has not previously held that the trial court’s failure to award sentencing credits

earned while serving a community corrections sentence renders a defendant’s sentence

illegal. However, in Jackson v. Parker, this court held that the failure to award credit for

time actually spent on community corrections contravenes section 40-36-106 and results

in an illegal sentence, entitling a defendant to habeas corpus relief. 366 S.W.3d at 190-

91. In reaching this conclusion, the court relied on an earlier ruling, in which this court

held that a trial court’s failure to award pretrial jail credit renders a defendant’s sentence

illegal. See Tucker v. Morrow, 335 S.W.3d 116, 123 (Tenn. Crim. App. 2009), overruled

by State v. Brown, 479 S.W.3d 200, 212 (Tenn. 2015). However, the Tennessee Supreme

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Court has since held that a trial court’s erroneous failure to award pretrial jail credit does

not render a sentence illegal for purposes of Rule 36.1 of the Tennessee Rules of

Criminal Procedure. Brown, 479 S.W.3d at 212. The supreme court reasoned that,

[a]lthough pretrial jail credits allow a defendant to receive credit against his

sentence for time already served, awarding or not awarding pretrial jail

credits does not alter the sentence in any way, although it may affect the

length of time a defendant is incarcerated. A trial court’s failure to award

pretrial jail credits may certainly be raised as error on appeal, as the

defendant in Stubbs [v. State, 393 S.W.2d 150, 154 (Tenn. 1965)] chose to

do. But a trial court’s failure to award pretrial jail credits does not render

the sentence illegal and is insufficient, therefore, to establish a colorable

claim for relief under Rule 36.1.

Id. at 212-13.

Although the supreme court in Brown addressed a defendant’s claim for relief

under Rule 36.1, the supreme court released State v. Wooden, 478 S.W.3d 585, 587

(Tenn. 2015), on the same day as Brown, which held that the definition of an “illegal

sentence” under Rule 36.1 “is coextensive with, and actually mirrors,” the definition of

illegal sentence for purposes of a petition for writ of habeas corpus. Despite this

language in Wooden, a divided panel of this court has ruled that a “properly-filed petition

for writ of habeas corpus remains a viable avenue for relief on a claim that the trial court

failed to award pretrial jail credit[.]” Steven Anderson v. Russell Washburn, No. M2018-

00661-CCA-R3-HC, 2019 WL 453957, at *7 (Tenn. Crim. App. Feb. 5, 2019), rev’d, No.

M2018-00661-SC-R11-HC, slip op. at *2 (Tenn. June 27, 2019) (order for publication).

However, the Tennessee Supreme Court recently reversed this court’s judgment in an

order filed June 27, 2019. Agreeing with the dissent in Steven Anderson, the supreme

court concluded that “a claim based on a trial court’s failure to award pretrial jail credits

is not cognizable in the context of a petition for habeas corpus relief.” Id. As a result, we

believe that the supreme court’s decisions in Brown, Wooden, and Steven Anderson call

into question this court’s ruling in Jackson. See Kenneth L. Langley v. State, No. E2016-

01726-CCA-R3-HC, 2017 WL 823887, at *3 (Tenn. Crim. App. Mar. 2, 2017) (stating

that Brown “casts doubt on the holding in Jackson”), no perm. app. filed; but see Carl

Jones, Jr. v. Doug Cook, No. E2015-01371-CCA-R3-HC, 2016 WL 2605985, at *2

(Tenn. Crim. App. May 4, 2016) (holding that a trial court’s failure to award credit for

time served on community corrections renders the sentence illegal and “is a cognizable

claim in a habeas corpus proceeding”), no perm. app. filed. We do not reach the issue of

whether a trial court’s failure to award credit for time served on community corrections

renders the sentence illegal for purposes of habeas corpus proceedings, however, because

Defendant has not filed a petition for writ of habeas corpus. Moreover, Defendant has

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not filed a motion pursuant to Rule 36.1, which was adopted with the express purpose of

providing “a mechanism for the defendant or the State to seek to correct an illegal

sentence.” Brown, 479 S.W.3d at 209 (quoting Tenn. R. Crim. P. 36.1, Advisory

Comm’n Cmt) (internal quotation marks omitted). Rather, this case is before the court on

an appeal from the revocation of a community corrections sentence, which we do not

view as the appropriate procedural avenue to raise a claim of an illegal sentence based

upon the trial court’s failure to award credit for time served on community corrections.

Accordingly, Defendant is not entitled to relief on this portion of his claim.

Conclusion

For the aforementioned reasons, we remand for the trial court to enter an amended

judgment awarding sentencing credits from October 4, 2017, to April 27, 2018, and we

affirm the judgment of the trial court, as modified.

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ROBERT L. HOLLOWAY, JR., JUDGE

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