# FILED
May 19, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1997 SESS ION

STATE OF TENN ESSEE, ) )C.C.A. No. 03C01-9606-CC-00214 Appellee, ) )Loudon County V. ) )Honorable Euge ne Eblen, Judge THOMAS WA

YNE JOHNSON, )

)(Sentencing) Appellant. ) )

FOR THE APPE LLANT: FOR THE APPELLEE: Joe H. Walker Charles W. Burson District Public Defender Attorney General & Reporter Alfred Lee Hathcock, Jr. Sandy R. Copous Assistant Public Defender Assistant Attorney Gener al 1191⁄2 East Broadway 450 James Robertson Parkwa y Lenoir City, TN 37771 Nashville, TN 37243-0493 Charles Ha wk District Attorney General Frank Harvey Assistant District A

ttorney General P. O. Box 703 Kingston, TN 37763

OPINION FILED:___________________
REVERSED AND

REMANDED
PAUL G. SUMM ERS, Judge2 OPINION The appellant, Thomas Wayne Johnson, pled guilty to vehicular assault, carrying a weapo n with the intent to go armed, and possession of a Schedule II controlled substance for delivery. He received a split sentence of 120 days in jail and was ordered to partic ipate in the community corr ections program. In conjunction with his c

ommunity corrections sent ence, the appellant was ord ered to make restitution to the v ictim of his vehicular assault, Curtis Wayne Jackson.
The appellant, who had been drink ing, was drivi ng at a high rate of speed when he struck a vehi cle driven by Mr. Jackson, who was s eriously injured. The appellant’s wife, a passeng er in the appellant’s v ehicle, was also inj ured.
On appeal, the appellant contends (1) that the ma nner in which his restitution was determi ned was not in accordance w ith the Criminal Sentencing Reform Act of 1989; (2) that his financial resources an d future ability to pay were not considered as required by Tenn. Code Ann. § 40-35-304(d); (3) that the re was inadequate evidence in the record to support restitution for the victim’s lost wages; and (4) that ther e was excessiv

e restitution imposed for undeter mined amounts of future health care expenses and lost wages.

After a review of the rec ord, this Court rever

ses the judgment of the trial court and remands this case for a new sentencing hearin g consistent with our guidance as set forth hereafter.
When an appel lant cha llenge s the le ngth, r

ange, or manner o

f servi ce of a sentence, this Court conducts a de novo review with a presumption that the determinations made by the tri al court are correct. Tenn. Code Ann. § 40-35- 401(d) (1 990). Howe ver, this p resumpt ion is con ditione d on an af firmati ve indication in the record that the trial court consi dered the sentencing principles3 and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).
The appellant bears the burden of show ing that the sentence was improper. Id. In determining whether the appellant has met this burden, this Court must consider (a) the evidence adduced at trial and the sentencing hearing; (b) the present ence report; (c) the pri nciples of sentencing; (d) the arguments of counsel; (e) the nature and characteristic s of the offense; and (f) the appellant’s potential or lack of potential for rehabil itation or treatment. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1990).
Furthermore, when an appell ant challenges the amount of resti tution ordered by the trial c

ourt, this Court’s rev

iew of the amount of restitution and how it was computed shall be c onducted de novo , on the record, with a presumption that the determination made by the trial court is corr ect. Tenn. Code Ann. § 40- 35-401(d) (1990); State v. Stewart , No. 01-C-01-9007-CC -00161 (Tenn. Crim. App. at Nashville, Jan. 31, 1991).
One goal of the community corr ections program is to pr omote accountability of offenders to thei r communities by requi ring financial restitution to victims of crimes. Tenn. Code Ann. § 40-36-104(2) (1990) . The purpose of restitution is not only

to compensate the victim but also to punish and rehabilit ate the guilty. State v. McKinney , No. 03-C-01-9309-CR- 00307 (Tenn. Crim. App. at Knoxville, Oct. 26, 1994).
First, the appellant argues that the trial court erred in the manner in which his restitution was determined. He maintains that th e presentence report was silent regarding restitution, stating only that “[r]estitution is to be determined.” Appellant contends that because the state did not strictly comply with Tenn. Code Ann. § 40-35-304(b) (1990) that requires “the pr

esentence service officer4 to include in the presentence r eport documentation regarding the nature and amount of the victim’s pecuniar y loss,” he was unable to argue for or agains t an appropriate amount of restitution. Furthermore , appellant’s counsel noted in his sentencing memorandum and his amended s entencing memorandum, both filed before the sentencing hearing , that the amount of pecuniary los s was not documented in the presentence repor t as required by Tenn. C ode Ann. § 40-35- 304(b) (1990).

The state admits that the trial c ourt failed to order documentation regarding the amount of the v ictim’s loss in the pr

esentence report. It maintains that such a failure has been held t o be harmless error, w hen a subsequent “hearing was specifically held to giv e the defendant full consideration under the law regarding restitution.” State v. Moore , 814 S.W.2d 381, 384 (Tenn. Crim. App. 1991). In its brief, the s tate contends that “even thoug h this information regarding the vic

tim’s lost wages w

as absent from the presentence repor t, the defendant suffered no prejudice from its omis sion, and he was giv

en the opportunity to argue against restitution at the sentencing hearing.”

Moore holds that a trial court’ s failure to order documentation regarding the amount of loss that could be attributed to a defendant in a presentence report was harmless er ror, when the defendant was given full considerati on under the law regardi ng restitution in a subs equent hearing. Id. However, in that case, the presentence report “contained the victim’s statemen t of his loss, but it did not specify what could be attributed to the defenda nt.” Id. In this case, the presentence report contains n othing about the victim’ s losses. The appellant was ordered to pay r

estitution in an undetermined amount not only for the victim’s rehabilit

ation expenses but also for hi s lost wages. Appell ant’s argument that had he received any information before the sentencing hear ing of the victim’s lost wages, he could have argued for a more appropriate amount in restitution, is persuasi

ve. He should be afforded this i nformation at a new5 hearing.
Second, the appellant contends that the trial court erred i n failing to consider the defendant’s financial resources and his future abil ity to pay or perform as required by Tenn. Code Ann. § 40-35-304(d) (1990). We agree.
At the time of the sentencing heari ng, the appellant was a t wenty-five year old, unemployed factory w orker who had earned approx imately $16,000 to $20,000 a year for the past couple of years. Although the presen tence report did not show any information about the victim’s losses, it did show the appellant’s assets of $1,400 (a 1984 automobile) an d debts totaling almost $80,000 ($75,000 of which were medical bills for his estranged wife who was injured in the accident). From the rec ord, the last week or t

wo that the appellant wa s employed his wages w ere garnished to pay for his own debts. Never theless, the appellant had agreed to pay a total of $4,000 in monthly amounts t oward therapy costs of the victim, Mr . Jackson. However, at the sentencing hearing , the trial court ordered that the resti tution for the victim’s r

ehabilitation expenses be s et at $4,000 and be open ended as to the am ount because the victim might require additional treatment. The trial court did not include the v ictim’s hospitaliza

tion expenses in the restituti on order. In addition, the tr ial court ordered an additi onal amount of restitution of $2,000 pe r month for lost wages retroactive to August 1994, the date the accident occurr ed, and continuing “until we have a report from the doctor that he’s [the v ictim’s] able to go back to work.” At the sentencing hearing, Mr. Jackson testified that he had a disability rating of between 60 and 70% and had no idea when he would be released to go back to work. He, in fact, was receiving

a disability check of $570 each month.
In determining restituti on, the trial court must cons ider what the defendant can reasonably pay g iven the appellant’s means an d future ability to pay.Tenn. Code Ann. §§ 40-35-303(d)(10) , -304(d) (1990); State v. Smith , 898 S.W.2d 7426 (Tenn. Crim. App. 1994). In Smith , this Court addressed the i ssue of whether the amount of restitution ordered was excessive. In that case, the trial court ordered the appellant to pay $92,111 “by making regulary (sic) monthly payments as best as possible.” Id. at 744. The appellant testified that he earned $7.00 per hour and that his av erage take-home pay w as $245. Id. at 747. He further testified that he paid $50 a week in child support and paid $100 for his own medical expenses. Id. We noted in that case that th e appellant would also have other necessary l iving expenses suc h as food, shelter, transportati on, clothing, and other items. Id. Thus, we found that the appellant c ould not pay restitution of $92,111 based on his pay. Id.
This Court recogniz

es that the appellant in this case has these same livin g expenses in addition to debts totaling almost $80,000 that he has to pay, even though he is unemployed. While we ack nowledge that the vi ctim, Mr. Jackson, has incurred rehabilitat ion costs and lost wag es, the trial court, in determining restitution, must also cons ider what the appellant c an reasonably pay. An or der of restitution which obv iously cannot be fulfilled s erves no purpose for the appellant or the victim.
For his third and fourth issues on appeal, the appellant argues th at there was inadequate evidence in the record to warrant restitution for lost wages, which are not pecuniary losses as required by the statute, and that the trial court erred in imposing excessive restitution in large undetermined amounts for futu re health care expenses and los t wages.

There is no formula or method for determi ning restitution. State v. Stewart , No. 01-C-01-9007-CC- 00161, (Tenn. Crim. App. at Nashv ille, Jan. 31, 1991). Restitution may be ordered for a crime victim’s “pecuniary loss,” which means all special damages as substantiated by eviden ce in the record or as agreed to by the appellant, but not to include general damages. Tenn. Code7 Ann. §§ 40-35-304(b), -304(e) (1) (1990). In his bri ef, the appellant contends that “lost wages” are not pecuniary losses under the restitution statute. We disagree. This Court has recogniz ed lost wages as part

of a restitution order. See State v. Vanderford , No. 01-C-01-910 1-CC-00004 (Te nn. Crim. App. a t Nashville, Aug. 22, 1991); State v. Cowart , No. 01-C-01-9508-CC- 00251 (Tenn. Crim. App. at Nashville, Nov. 22, 1996).
Tenn. Code Ann. § 40-35-304(e)(1) (1990) states that restit ution be made only where special

damages are “substantiated by evidence in the record. ” After reviewing the r

ecord in this case, this Court believes that the v ictim’s testimony about his wages, w

hich was unchallenged by the appellant, was s ufficient to warrant restitution for lost wages.
Furthermore, the appellant cont ends that the trial court er red in imposing excessive restit ution in large, undetermine d amounts for health care expenses and lost wages. The appellant argues that the restitution awarded in this case “is not reasonable in that it attempts to mirror a civil tort action.”

The victim, who at the ti me of the accident had been laid off from his job , worked as a repairman of electronics equipment. He t estified that when he was employed, he earned approxi mately $300 per week in addition to bonuses and that he earned approximately $2,000 per month. From the reco rd, appellant’s counsel noted several times that the amount of restitu tion for the victim’s lost wages was equal

to the victim’s statement of his wages whil e he was employed by his previous empl oyer. Also, appellant’ s counsel noted in his bri ef that the purpose of the restitution statut e was not “to mirror a civil tort action .”
It appears from the record that the state interpreted the purpose of the restitution statute to be anal ogous to a civil tor t action. For example, the state remarked:8 Because the amount of money that this fell ow can pay in at any reasonable r

ate is pitta nce. It’s no

t going to

provide hi m [the vict im] what he needs. It’s not g oing to begin to pay back the los t wages. There’s none of it can put him back and make him whole again

. (emphasis added). The state also commented that “[t]here is nothing that he [defendant] could ever do that w ould make everybody whole in this case.” (emphasis added). Furthermore, in the state’s brief, it adm its that the trial court ordered the defendant to pay “a monthly equivalent to the victim’s lost wages.” (emphasis added).

This Court has cited People v. Johnson , 780 P.2d 504 (Colo. 1989) (en banc) on several o ccasions with regard to restitution. The relevant lan guage from that case states that “[t]he s tatutory scheme . . . does not require the sentencing court to determine a defendant’s crimina l liability for restitution in accordance with the strict rules of damages applicable to a civil case.” Id. at 507.

Moreover, the trial court stated that any amount of res titution it imposed would be offset by any amount aw arded in the civil ac

tion against the appellant. Mr. Jackson, the vic

tim, apparently had recei ved a default judgment agains t the appellant in a civil suit as a result of the accid ent. In determining the amount of restitution, the trial court commented several times that the restitution for lost wages would be concurrent with the civ il judgment against the d efendant and any amount ordered in the civil judgment would offset the restitution ordere d as a condition for probation. At the time of the sentencing hearing , the amount of the civil judgment had not been set.

Tenn. Code Ann. § 40-35-304(c) (1990) states that “[t]he court shall specify at the time of the sentenci ng hearing the amount and time of pay ment . . .. The court may not establish a payment or performance schedule ex tending beyond the statutory max imum term of probation supervis ion that could have been9 imposed for the offense.” Also, Tenn. Code An n. § 40-35-303(c) (1990) s tates that a defendant may be placed on probati on “for a period of time no less tha n the minimum sentence allowed under the classification and up to and including the statutory maximum time for the class of the conviction off ense. “ See also Tenn. Code Ann. § 40-35-303 (1990) sent encing commission comments. Ther efore, although the appellant received a four-year probation for his vehicular assault conviction, he could have received as much as twelve years of probation because the statutory maximum term for a class D felony is twelve years. The trial court may consider this factor at a new sentencing hearing when setting restitutionary terms.
Furthermore, this Court in State v. Irick held that “ basing the amount o f restitution upon a civil judgment is palpable error because personal injury judgments ordinarily include general damages, and general damages are specifically excluded from restitution by T.C.A. § 40-35-304(e).” State v. Irick , 861 S.W.2d 375, 376-77 (Tenn. Crim. App. 1993); see also State v. Lewis , 917 S.W.2d 251 (Tenn . Crim. App. 1995).
This Court respectfully reverses the judgment of the trial court and remands this case for a new sentenci ng hearing consistent w ith this opinion. The terms of restitution should be definiti ve, consistent, and separat e from other judgments. The length and terms of probation and r estitution should be set so as to compensate the victim and punis h the appellant. Should the appell ant’s financial status change during the probationary period, the court can adjust the restitut ionary am ounts an d terms ac cordingly.10 ________________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

_____________________________ JOHN H. PEAY, Judge

______________________________ CORNELIA A. CLARK , Special Judge