        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs November 12, 2015

                STATE OF TENNESSEE v. CURTIS COLSTON

                 Appeal from the Circuit Court for Grundy County
                        No. 5361    Justin C. Angel, Judge


                 No. M2015-00761-R3-CD – Filed December 29, 2015


Pursuant to his plea agreement, the Defendant-Appellant, Curtis Colston, entered a guilty
plea to aggravated assault and received a sentence of six years, with the manner of
service to be determined by the trial court. In this appeal, Colston argues that the trial
court abused its discretion by denying his request for an alternative sentence. Upon our
review, we affirm the sentence and remand for entry of a corrected judgment.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
                   Remanded for Entry of Corrected Judgment

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT L. HOLLOWAY, JR., JJ., joined.

B. Jeffery Harmon, District Public Defender; Robert G. Morgan, Assistant Public
Defender, Jasper, Tennessee, for the Defendant-Appellant, Curtis Colston.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
James M. Taylor, District Attorney General; and David Shinn, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                       OPINION

                             FACTUAL BACKGROUND

      Plea Submission Hearing. At the January 14, 2015 plea submission hearing,
Colston stipulated to the following facts as outlined by the State:

      [T]he primary witness in this case would be Josh King, an investigator with
      the Grundy County Sheriff’s Department and various other law
        enforcement officers, and also a Z.L. and a T.L.1 Testimony from
        Investigator King would be that on August 14, 2014, he was dispatched to
        the volunteer fire department area of Palmer here in Grundy County on a
        report of an assault. Upon his arrival, he found a young man by the name
        of Z.L. who had been cut on the left part of his shoulder and his rib cage
        area. [Z.L.] appeared to be cut with some sharp object. [Investigator King]
        took a statement from [Z.L. and T.L., a minor.]. They would testify that the
        defendant came to the area [where] they were sitting in front of the
        volunteer fire department. Z.L. is [a volunteer fireman]. The[ir] testimony
        would be that the defendant came up to them. The young, the minor, T.L.
        was standing outside talking to Z.L., who was sitting inside his pickup
        truck. The defendant punched T.L., the minor, and after he punched the
        young boy[,] Z.L. got out of the vehicle and tried to defend his brother from
        further assault. [T.L.] took a swing at the defendant. The defendant pulled
        a knife and swung at Z.L., cutting him. The defendant then ran from the
        scene.

        The officers began their investigation and they knew the defendant, where
        he lived at was up the road from this location. They went to that location.
        They found the defendant lying in the driveway of the location. He had the
        knife. It was [lying] underneath him. Also, the defendant had like a mask
        on, some type of camouflage mask, if I recall, and they found that with him
        also at the scene. That essentially would be the State’s case.

       Colston entered a “best interest” guilty plea to one count of aggravated assault and
claimed that he had no memory of the incident. At the March 27, 2015 sentencing
hearing, the State introduced the presentence report, which included the following
criminal history: felony convictions for marijuana possession, unlawful possession of a
firearm, aggravated assault,2 and several driving related convictions. It also noted that
Colston suffers from chronic liver and kidney disease, hypertension, gout, and chronic
anxiety disorder. It described Colston’s mental health as “good,” and noted that at the
time of the report, he was receiving mental health counseling.

       Dianne Hand supervised Colston in the community corrections program during the
“late 80’s or early 90’s.” Although she did not have any written documentation of a prior

        1
           In an effort to protect the anonymity of the minor victim and his sibling, we will refer to them by
their initials only.
        2
          The aggravated assault conviction was not listed in the Prior Record section of Colston’s
presentence report. However, a copy of the judgment was attached as an exhibit and included with the
record on appeal.
                                                     -2-
violation of community corrections, she testified that Colston did not successfully
complete the program and that he was required to serve the remainder of his sentence in
confinement. She did not recall the grounds supporting the revocation. Andrew
Thornton prepared Colston’s presentence report and testified that Colston’s last
conviction occurred in 1998. He stated that Colston had his probation revoked in federal
court and that he had been incarcerated on at least three separate occasions.

       Josh King, the investigating officer in the case, testified that he found Z.L. with a
three to four inch cut on his left side. After speaking with witnesses, he learned that the
injury was the result of an altercation between the two victims and Curtis “Smokey”
Colston. Officer King testified that upon arriving at Colston’s house, he found Colston
lying face down in tall grass next to his driveway. He asked Colston to stand up, and
Colston complied, revealing a folding knife and a camouflage mask. He described
Colston’s demeanor as “incoherent” and recalled that when he found Colston, he was out
of breath, complaining of chest pains, and asking for his medication.

        David Lance testified that he began working as a jail administrator at the Grundy
County jail shortly after Colston was incarcerated. At that time, Colston was not allowed
to leave his jail cell because of behavioral issues, and he would verbally lash out when
given orders. When Lance and other administrators began allowing Colston out of his
jail cell to assist with general work around the jail, Colston’s behavior drastically
improved. He had not observed any dangerous or violent tendencies from Colston. He
stated that at the time of the hearing, Colston was “doing really well[.]”

       Susan Sissom, Colston’s wife since 2006, testified that she had been in a
relationship with Colston for eighteen years. She had previously worked as a librarian at
the local public library, which was located immediately next to the fire department where
the incident took place. She believed she was subjected to retaliation because she had
filed a formal complaint with the city against members of the fire department. On the
night of Colston’s arrest, she had been working at the library when someone “slung
gravel on [her] car.” She informed Colston of the incident and took a bath. She said that
she was not aware that Colston had gone to the fire department until Officer King
knocked on her door requesting Colston’s medication. She further confirmed that
Colston received treatment at the local Veteran’s Affairs Hospital for anxiety as well as
chronic kidney and liver disease.

       Colston provided the following elocution to the court:

       I’d just like to say that I know I don’t really remember what happened, but I
       realize I done wrong and other people have suffered for it, and I’m sorry for

                                            -3-
      it, and I’ll make sure it doesn’t happen again. I’m sick and I need to be
      with my family. So that’s all I’m going to say.

       At the conclusion of the hearing, defense counsel asked the court to allow Colston
to serve his sentence on community corrections. Counsel noted that while violent
offenders are typically not eligible for a community corrections sentence, Colston’s
history of mental health problems makes him eligible under the “special needs” provision
of the community corrections statute. In response, the State pointed out that Colston was
not a favorable candidate for an alternative sentence because he was a Range II offender
and had previously been incarcerated on three separate instances. The State further
argued that, in light of the violent nature of the offense, it was appropriate to require
Colston to serve his sentence with the Tennessee Department of Correction.

       In denying the request for alternative sentencing, the trial court explained that,
while Colston’s health weighed in favor of a sentence in community corrections, other
factors outweighed that consideration. The court reasoned:

      The strongest factor in your favor about probation is your health situation.
      However, the other factors, I think, are out weighing that factor. The most
      important[,] the prior criminal history of the defendant, and, sir, I’m
      looking at the pre-sentence report and your prior criminal history . . .
      [y]ou’ve been sentenced to incarceration already, and I feel like there are no
      lesser alternatives for me at this time, Mr. Colston. I feel like you’ve been
      to – you’ve been to the penitentiary, you’ve plead guilty to felonies. You
      have plead guilty now to a violent offense, sir, and I – the Court has no
      other option, I feel, than to sentence you to serve six years with the
      Tennessee Department of Correction.

      This timely appeal followed.

                                      ANALYSIS

        Colston argues that the trial court abused its discretion by denying him an
alternative sentence. He acknowledges that he does not meet the minimum criteria for
consideration for a community corrections sentence because of his previous convictions
for violent crimes. See T.C.A. § 40-36-106(a)(1)(D)-(F). However, he asserts that the
trial court erred in not sentencing him to community corrections under the “special needs
provision” of the Community Corrections Act. The State responds that the trial court
properly imposed the sentence in this case. We agree with the State.



                                           -4-
       “[T]he abuse of discretion standard, accompanied by a presumption of
reasonableness, applies to within-range sentences that reflect a decision based upon the
purposes and principles of sentencing, including questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).
Because the record shows that the trial court carefully considered the evidence as well as
the purposes and principles of sentencing prior to denying an alternative sentence,
Colston has failed to “overcome the presumption of reasonableness afforded sentences
which reflect a proper application of the purposes and principles of our statutory
scheme.” Id. at 280. Therefore, we afford a presumption of reasonableness to the
sentence imposed by the trial court in this case.

        Here, Colston concedes that he was not considered a favorable candidate for
alternative sentencing because he had been previously incarcerated on at least three
separate instances. See T.C.A. § 40-35-102(6)(A). He further acknowledges that he was
not eligible for a community corrections sentence under the general provisions of the
Community Corrections Act. See T.C.A. §40-36-106(a)(1)(A)-(F). Nevertheless, he
insists that the trial court abused its discretion in denying his request for a community
corrections sentence under the “special needs provision” of the Act. The intent of the
Community Corrections Act was to “[e]stablish a policy within the state to punish
selected, nonviolent felony offenders in front-end community based alternatives to
incarceration, thereby reserving secure confinement facilities for violent felony
offenders.” Id. § 40-36-103(1). Eligible offenders under the Community Corrections Act
include:

      (A) Persons who, without this option, would be incarcerated in a
      correctional institution;

      (B) Persons who are convicted of property-related, or drug- or alcohol-
      related felony offenses or other felony offenses not involving crimes
      against the person as provided in title 39, chapter 13, parts 1-5;

      (C) Persons who are convicted of nonviolent felony offenses;

      (D) Persons who are convicted of felony offenses in which the use or
      possession of a weapon was not involved;

      (E) Persons who do not demonstrate a present or past pattern of behavior
      indicating violence; [and]

      (F) Persons who do not demonstrate a pattern of committing violent
      offenses[.]
                                           -5-
Id. § 40-36-106(a)(1)(A)-(F). Simply because an offender meets the minimum
requirements under the Community Corrections Act “does not mean that he is entitled to
be sentenced under the Act as a matter of law or right.” State v. Ball, 973 S.W.2d 288,
294 (Tenn. Crim. App. 1998) (citing State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim.
App. 1987)). Instead, the Act’s criteria “shall be interpreted as minimum state standards,
guiding the determination of eligibility of offenders under this chapter.” T.C.A. § 40-36-
106(d). The “special needs” provision of the Community Corrections Act provides as
follows:

       Felony offenders not otherwise eligible under subsection (a), and who
       would be usually considered unfit for probation due to histories of chronic
       alcohol or drug abuse or mental health problems, but whose special needs
       are treatable and could be served best in the community rather than in a
       correctional institution, may be considered eligible for punishment in the
       community under the provisions of this chapter.

Id. § 40-36-106(c).

        Before being eligible for a community corrections sentence under the “special
needs” provision of the Act, Colston must be eligible for probation. State v. Boston, 938
S.W.2d 435, 438 (Tenn. Crim. App. 1996) (citing State v. Staten, 787 S.W.2d 934, 936
(Tenn. Crim. App. 1989)). In this case, Colston was eligible for probation because his
sentence was ten years or less and because the offense was not specifically excluded by
statute. See T.C.A. § 40-35-303(a); State v. Langston, 708 S.W.2d 830, 832-33 (Tenn.
1986).

       Next, the trial court is required to determine whether the offender is suitable for
placement in the community corrections program by finding the following:

       (1) the offender has a history of chronic alcohol, drug abuse, or mental
       health problems, (2) these factors were reasonably related to and
       contributed to the offender’s criminal conduct, (3) the identifiable special
       need (or needs) are treatable, and (4) the treatment of the special need could
       be served best in the community rather than in a correctional institution.

Id. at 439 (citing State v. Robert Wilson, No. 03C01-9209-CR-00305, 1993 WL 79626,
at *5 (Tenn. Crim. App., at Knoxville, Mar. 22, 1993)). In the present case, the trial court
made specific findings as to whether Colston was a suitable candidate for a community
corrections sentence. It noted that the “strongest factor in [Colston’s] favor about
probation is [his] health situation,” and then it determined that this factor was outweighed
                                            -6-
by Colston’s extensive criminal history. The record does not preponderate against the
trial court’s finding. Although Colston’s wife testified that he suffered from anxiety
disorder, Colston failed to put on any proof demonstrating that his anxiety disorder was
reasonably related to, or contributed to, his criminal conduct. Furthermore, in light of the
fact that Colston described his current mental health as “good” and stated that he was
currently receiving mental health treatment, Colston failed to establish that his special
need would be better treated in the community rather than in a correctional institution.
Accordingly, we agree with the trial court, and conclude that he was not a proper
candidate for a community corrections sentence. Colston is not entitled to relief.

                                     CONCLUSION

       We affirm the judgment of the trial court. However, we note that the judgment
form incorrectly lists the date of judgment in this case as January 14, 2015, and the date
of sentencing as March 27, 2014. According to the record, both the date of judgment and
the date of sentencing should be March 27, 2015, and we remand for entry of a corrected
judgment reflecting that date.



                                                  _________________________________
                                                  CAMILLE R. McMULLEN, JUDGE




                                            -7-
