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State v. Colligan

Court of Criminal Appeals of Tennessee, Nashville

July 12, 2019

STATE OF TENNESSEE
v.
CHRISTOPHER COLLIGAN

          Assigned on Briefs June 19, 2019

          Appeal from the Criminal Court for Davidson County No. 2014-I-651 Seth W. Norman, Judge.

         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.

          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.

          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.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE.

         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.

         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 ...


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