### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT JACKSON Ass ig ne d o n B rie fs Aug us t 3 , 20 10

STATE OF TENNES SEE v . TERENCE ALAN CARDER

D i r e c t A p p e a l f

r o m t h e C i r c u i t C o u r t f o r M c N a i r y C o u n t y N o . 2 2 7 0 J

. W e b e r M c C r a w , J u d g e

N o . W 2 0 0 9

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- C C A

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- F i l e d D e c e m b e r 1 0 , 2 0 1 0

The defe ndant, Tere nce Alan Carder
, appea ls the order enter ed ag ainst him by the McNa iry County Circuit Court, order ing t h at h e pay $80,000 in restitution. The defe ndant pled g uilty to theft of
proper ty over $1000, a

Class D felony , and wa s sentence d to two y ear s of proba tion following the service of six ty day s in jail. Additionally
, the court order ed the defen d an t t o p ay $80,000 in restitution at a rate of $1000 per month. On direc t appea l, a panel of this court aff irmed the sentenc e but rema nded the case to the trial court for rec onsideration of the amount of restitution in light of the defe ndant’s ability to pay

. On rema nd, the trial court, while acknow ledg ing that the defe ndant would
not be able to pay the entire $80,000 in restit u t i o n d u ri n g t he term of his sentenc e, nonetheless,
enter ed an order that the amount of restitution order ed would rema in at $80,000. Howeve r, the court did modify the terms of repa y ment to $100 per month. On appeal
, the defe ndant ag ain contends that, g iven his financ i al re s o u rc es and ability to pay , the trial court err ed in order ing him to pay $80,000 in r estitution. We a g ree

. Be cause it is unclea r from the rec ord exactly how many months the defe ndant has rema ining on his sentenc e in light of his rec ent incar cer ation for a separ ate crime,

we must ag ain rema

nd the case to the trial court with instructions to enter an o rd er o f re s tituti on ref lecting a total amount of $100 times the months rema ining on the defe ndant’s sentenc e in which he is expected to pay

.

T e n n . R

. A p p . P

. 3 A p p e a l a s o f R i g h t ; J u d g m e n t o f t h e C i r c u i t C o u r t R e m a n d e d

J O H N E V E R E T T W ILL IA M S , J

. , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t , i n w h i c h J A M E S C U R W O O D W IT T , J R

. a n d J

. C

. M C L IN , J J

. , j o i n e d

.

C h a d w i c k G

. H u n t , S a v a n n a h
, T e n n e s s e e , f o r t h e a p p e l l a n t , T e r e n c e A l a n C a r d e r

.

R o b e r t E

. C o o p e r , J r

. , A t t o r n e y G e n e r a l a n d R e p o r t e r ; S o p h i a S

. L e e , A s s i s t a n t A t t o r n e y G e n e r a l ; D

. M i c h a e l D u n a v a n t , D i s t r i c t A t t o r n e y G e n e r a l ; a n d B o b G r a y , A s s i s t a n t D i s t r i c t A t t o r n e y G e n e r a l
, f

o r t h e a p p e l l e e , S t a t e o f T e n n e s s e e

.

O P I N I O NP r o c e d u r a l H i s t o r y

The unde rly ing f

acts in this case , as re cited in the pre sentenc e re port, are as follows:

. . . [O] n or about [May 8, 2006,] in McNa iry County
, [t he] defe ndant did enter at least one home and other proper ty along side Hwy

. 6 4 E as t o wned by Mr. Everitt (Ever ett) Ha ger m an on multipl e occa sions. [The] defe ndant sold proper ty that belong ed to Mr. Hag erma n to Clint J ones of Counce, Tenne ssee and J err y My rick of Savannah, Tenne ssee. [The] defe ndant did r ece ive money in the amount of $1,000 to $10,000 in cash and c hecks f rom these two individuals.

Ba sed upon these actions, the def endant wa s indicted by a McNairy County g rand jury for theft of proper

ty over $60,000. He subsequently enter ed a g uilty plea to the lesser included offe nse of theft of proper

ty over $1000 and ag ree d to a sentenc e of two y ear s as a Rang e I offe nder, with the trial court to deter

mine the manner of service

. After a sentenc ing hear ing, the trial court order ed that the defe ndant serve six ty day s in jail, with the balanc e of the sentenc e to be serve d on probation. He was also order ed by the t rial court to pay $80,000 in restitution at a rate of $1000 per month. The defe ndant filed a direc t appea l, and a panel of this court summarized the evidenc e offe red at the first
sentenc ing he aring as follows:

A sentenc ing hear ing was held on J une 6, 2008. At the h ear ing, the
prese ntence repor

t was admitted into evidenc e.

. . . The prese ntence repor t indicated that the defe ndant lived with his g irlfriend of ten y ear s and had two daug hters. The
repor t stated t hat t he defenda

nt had been s elf-e mploy ed as a di es el mecha nic s ince 2000.

The victim, Evere tt Hag erma n, testified that approximately $200,000 worth of his proper

ty was stolen, including 75 vehicles. Mr. Hagerm an noted that the defe ndant denied stealing all of the proper ty , but Mr. Hag erma

n believed the defe ndant “wa s the one selling this stuff.” Acc ording to Mr. Hag erma n, he rec overe d about $80,000 worth of his propert y

. P rior to the thefts, he had been the North Americ an Coordinator for a charity which purc hased ve hicles for transport to third world countries. Since the theft, howeve r, he ha d been r elieved of his position and had taken employ

ment as a truck driver to help repa y the char ity

. Mr. Hag erma n said that he had creat ed a li st detailing the s tolen proper ty and it s value. Howeve r, Mr. Hag erma n sug g ested that not all the stolen prope rty was noted on the list.

State v. Terence Alan Carder
, No. W2008-01450-CCA-R3-CD (Tenn. Crim. App., at J ackson, J une 30, 2009). I n addre ssing the defe ndant’s arg ument that the trial court had order ed restitution in an amount that he could not rea sonably b e expected to satisfy
, this court noted the rele vant finding s made by the trial cour

t at the first sentenc ing he aring :

I t appea rs to be a very substantial amount of proper ty

. . . taken. The witness

-2-testified initially about $200,000.

. . . But that’s a larg e amou n t o f re stitut ion.

Although the court wa s conce rned a bout the amount that [t he defe ndant] should be [l iable] for, the a mount that was testified to w hich I could . . . re ach some cer tainty on is $80,000, so the amount of restitution is going to be $80,000.

Id . The trial c ourt also made the following statements to the victim in the case :

. . . [C ]ertainly y ou have a civil rec ourse. A civil sui t co u l d b e filed ag ainst [t he defe ndant] as well as any others that y ou think are responsible to y ou for that amount of money , but the Court is limit ed on the sentenc ing to [t wo] y ear s and

. . . the Court is bound by cer

tain sentenc ing g uidelines.

. . . I rec og nize having that repa id in two
y ear s is probably not g oing to happen, s o y o u’re g oing to have to pursue it civilly
, which y ou have the rig ht to that as well.

But g oing back to the issue of how much [t he defe ndant] can pay per month, $100 rea lly does not g o much t owar d this restitution. I will order restitution in the
amount of $1000 per month. I sug g est, [t he defe ndant]

. . . work two jobs. That still

cer tainly won’t get it paid. I t is an amount I think that [ the defendant] can pay and the Co u rt ca n only set an amount which is rea sonably expected to be paid by the defe ndant.

Id

. The panel of this court, in order ing rema nd, noted that the trial court had imposed restitution in

an amount which would be impossibl e for the defe ndant to pay at a rate of $1000 per month during his two-y ear sentenc e. As such, the case was rema nded back to the trial court “to consider evidenc e of the defe ndant’s ability to pay and to set an amount of restitution that the defe ndant can rea sonably
pay within the appropria

te time fra

me.”

A s econd hear ing was held on the matter following the rema nd. At that hear ing, th e defe ndant testified that he was prese ntly incar cer ated in Hende rson County on a separ ate char g e and had been sentenc ed to a four- y ear sentenc e at thirty perc ent. He testified that he had acc rued one month of jail cre dit and that he anti cipated being in custody more than one y ear

. The defe ndant further testified that he had no financ ial resour ces at p re s en t to satisfy the restitution awa rd, also indicating that he had no means to support his family during his incar cer ation. He testified that upon his relea se, he w as ca

pable of ear ning a pproxi mately

$1200 per month.

After hear ing the evidenc e prese nted, the trial court ref used to modify the restitution amount of $80,000 but did modify the defe ndant’s repa y ment t er m s fr o m $1000 per month to $100 per month. This appeal followe d.

Analysis

On appea l, the defe ndant ag ain challeng es the trial court’s i mpositi on of restitution in the
amount of $80,000, asser ting that it is not rea sonable in light of his financ ial resour ces and future

-3-ability to pay

. When a defe ndant challeng es the validity and amount of restitution, this court

conducts a de novo revie w of both the amount of restitution order ed and the method by which it was deter mined. S t a t e v. Johnson
, 968 S.W .2d 883, 884 (Tenn. Crim. App. 1997). The trial court is entitled to a pre sumption of corre ctness on appe al. Id

.

Tenne ssee Code Annotated section 40-35-304 sets out the proce dure the trial cour t m u st follow in order ing resti t u t i o n

. T h e trial court “may direc t a defe ndant to make restitution to the victim of the offe nse as a c ondition of probation.” T.C.A. § 40-35-304( a) (2006). “Wheneve r the
court believes that restitution may be proper or the victim o f t h e o ff ense or the district attorney g ener al re quests, the cour t shall or der the prese ntence service office r to include in the pre sentenc e repor t documentation reg arding the nature and amount of the victim’s pecunia ry loss.” T.C.A. § 40- 35-304(b)

. The amount of restitution the defe ndant may be direc ted to pay is limit ed to “the victim’s pecunia ry loss.” Id

.

There is no set formula for awa rding restitution. Johnson
, 968 S.W .2d at 886. The sum of restitution order ed must be rea sonable and does not have to equal the prec ise pecunia ry loss. State

v. Smith
, 898 S.W .2d 742, 747 (Tenn. Crim. App. 1994). Howeve r, the court must consider not only
t h e victim’s pecunia

ry loss but also the defe ndant’s financ ial resour ces and future ability to pay

. T.C.A. § 40-35-304( d); State v. Bottoms
, 87 S.W .3d 95, 108 (Tenn. Crim. App. 2001). “The purpose of re s t i tution is not only to compensa te the victim but also to punish and reha bilitate the g uilty .” Johnson , 968 S.W .2d at 885.

I n order ing restitution, the trial court shall specify the amount of time and pay ment and may permit pay

ment or perf

ormanc e of restitution in installments. T.C.A. § 40-35-304( c). The court may not, howeve r, establish a pay ment or schedule extending bey ond the expiration of the sentenc e. Id

. at (g )(2)

. I f the defe ndant, victim, or district attorney petitions the trial court, it may hold a hear ing and, if appropr iate, wa ive, adjust, or modify its order re g arding restitution. Id

. at (f)

. Fur ther, any unpaid portion of the restit ution may be conver ted to a civil judgme nt. Id

. at (h)( 1); Bottoms
, 87 S.W .3d at 108. Howeve r, “[ a]n order of restitut ion which obvious ly cannot be fulfilled s erve s no purpose f or the [defe ndant] or the victim.” Johnson , 968 S.W .2d at 885.

As previously noted, on the initial direc t appea l filed by the defe ndant, this court rema nded with instruction to “conside r evidenc e of the defe ndant’s ability to pay and to set an amount of restitution that the defe ndant can rea sonably pay within the appropr iate time fra me.” Review of the

rec ord re veals that wa s not done on rema nd. The c ourt stated as f

ollows on the rec ord:

Af t er h ea ri ng the proof in the matter, ag ain, as I said, I ’m g oing to addre s s two issues. First, which is clea rly sent back to the Court, rema nded fo r the Trial Court to determine whe ther $80,000.00 is a reasona ble amount of restituti on g iven the defe ndant’s financ ial resour ces and future ability to pay , the Court still believes $80,000 is the appropr iate amount of r estitution.

Upon revie w of [Tennessee Code Annotated sec t i on] 40-35-304, the

-4-Appellate Court g ives a qualifier, appar ently
, on the Court setting restitution with the

last statement in their Appellate decision say ing, “giv en the defe ndant’s financ ial

resour ces a

nd future a

bility to pay .”

I don’t find that is what thi s C o u rt i s require d to do in setting restitution. And, ag ain, [Tennessee Code Annotated section] 40-35-304( b) direc ts the Court on the setting of re stitut ion. I n case law that the Appe llate Court quotes say , “The re’ s

no set formula for awa

rding restitution. The sum of the restitution or dere d must be

rea sonable.” And, ag ain, the Court believes this is rea sonable beca use it ref lects the loss to the victim.

And then it say s, “The purpose of restituti o n i s n o t only to compensa te the victim, but also to pun i sh and reha bilitate the g uilty .” Certainly
, the pay ment of
money is punishment and in reha bilitation, doing the rig ht thing, which is making a person whole , should be, ce rtainly part of a ny one’s r ehabilitation.

So, what I continue to strug g le with is,

. . . [t ]he portion that say s, “must also consider financ ial resour ces and future ability of the defe ndant to pay ,” the Court is considering the future ability of the defe nd ant to pay and I g o bey ond that probationar

y period when it can be converted to a civil judgme nt which the statute allows.

I am g oing to set pay ment of $100.00 per month upon his rele ase toward the restitution amount. I clea rly understand that $100.00 per month will not completely
sat i s fy the full pay

ment of restitution, but it is in acc ord with punishing and reha bilitating the g uilty

.

I further rec og nize - - There should be no probation violation filed if this full $80,000.00 is not paid. That’s not the intent of the Court. Ag ain, I clea rly rec og nize that won’t be p ai d
, b u t I do believe he’ll have the ability to pay the $100.00 per month and that will be the only thing the Court will be looking to with reg ard to him being in compliance w ith probation with reg ard to moneta ry issues.

Ag ain, I g ive g rea t weig ht to [Tennessee Code Annotated section] 40-35- 304(h) which allows the conver sion to a civil judgme nt. Clearly
, it is contemplated by the L eg islature that victim s or t he victim ’s beneficiar y need to have some relief as being a victim of a c rime and this is part of the relief

.

And ag ain, if y ou look at the last part of the statute, it say s, “A civil judgme nt shall rema in in eff

ect for ten y ear s,” so it g oes well bey ond the limit s of probation. I t talks about - - whe n we talk about future, it’s ta lking about at least ten y ear s, and I assume that this could be re newe d just li ke any other c ivil judgment.

-5-On appea l, the State asser ts that the trial court d i d n o t abuse its discretion beca use it “dete rmined the victim’s loss to be $80,000, and order ed restitution acc ording ly ” and, further
, that the court had considere d the defe ndant’s ability to pay

. The State notes that “althoug h the trial court

rec og nized that t h e d ef

en d ant would probably be unable to pay back the entire restitution amount during his sentenc e, [ the court] acknow ledg ed that the vi ctim can continue collectio n eff orts afte r the probationar

y period has ended under Tenne ssee Code Annota te d section 40-35-304( h).” We find both the trial court’s and the State’s relianc e upon section 40-35-304( h), which sets out the proce dure for c onverting the unpaid portion of r estitution t o a civil judg ment, to be misplaced.

Tenne ssee c ase law clea

rly states that the amount of restitution or dere d in a case should be
set at the amount order ed to be paid per month multipl ied by the number of months it is to be paid. See State v. Sherrie Ann Colli ns , No. M2007-01356-CCA-R3-CD (Tenn. Crim. App., at Nashville, Fe b. 20, 2008) (since t h e t ri al court ruled the defe ndant was only able to pay $100 per month in restitution f

or a period of thirty -six months, the total amount of restitution whic h could be order ed by the trial court was $3600). The trial court in this case confuse d the victim’s pe cuniar y loss, i.e. $80,000, with restitution. W hile an important fig ure for the court to de termine, the pecunia ry loss
to the victim is not the amount of restitution which should nece ssarily be awa rded, as it does not take into considera

tion the defe ndant’s ability to satisfy that restitution. See T.C.A. § 40-35-304( d) (“I n d et er m i n i n g the amount and method of pay ment or other restitution, the court shall consider th e financ ial resour ces a

nd future a

bility of the de fenda

nt to pay or per form.”)

As an example, suppose that a court deter mined that a victim in a case suffe red a pecunia ry loss of $20,000. At this point, the court must look to the defe ndant’s financ ial resour ces and ability
to pay

. I n our exa m p l e, De fe n d an t A is wea lthy and has assets in his bank acc ount of $60,000. Ba sed upon these considerations, the trial court would set the restitution amount at $20,000 beca use Def endant A can pay the balanc e. Howeve r, on the other end of the spectrum is Def endant B. Whil e he was g iven a three -y ear probationar y sentenc e in this case , the sentenc e is to be serve d concur rently with a sentenc e of ten y ear s i n ca rc er ati on in a separ ate case

. Additionally
, it is deter mined that Def endant B has no assets. Ba sed upon this, as the Def endant will be incar cer ated for the entire term of the instant sen t en ce , h e h as no ability to pay

. As such, the restitution amount should be set at 0.00. Def

endant C, who is also s en t en ced to a term of three -y ear s of probation, has a job, has no assets, and has outstanding bills. The c ourt deter mines that Def

endant C can pay $200 per month toward the restitution amount. This being the case , the amount of restitution should be set at $7200, deter mined by multipl y ing $200 per month times the thirty -six months Def endant C will be on probation.

Returning to the instant case befor e us, the court acknow ledg ed that it would be impossibl e for the defe ndant to be able to pay the entire loss in t h e p er i o d while he is on probation but, nonetheless, enter ed an order of restitution for the entire loss of $80,000. This, as previously noted,

serve s no purpose for either the victim or the defe ndant. See Johnson
, 968 S.W .2d at 885. Moreove r, it cre ates a proce dural nightmar e, which was acknow ledg ed by the trial court, in that the defe ndant is pla ced on probation and a condition of that probation is that he pay s the restitution a s order ed. Whil e the court noted in the rec ord that i t was the intent of the court that the defe ndant

-6-could not be violated as long as he paid the $100 per month, reg ardle ss, the order of restitution with

which the defe ndant must c omply specifie s $80,000. The proper proce dure is to se t the amount of restitution as the amount which the defe ndant is deter mined to be able to pay

. As previously noted,

we are unable to deter

mine that amount in this case as the rec ord is not clea r as to exactly how long the defe ndant will rema in under the sentenc e in this case or for which of these months he is expected
to pay based on his sepa ra t e i n carce ration. As such, the case must be rema nded ag ain to the trial
court to ente r an order of restitution whic h complies with this dec ision, i.e. , $100 per month times the re maining numbe r of months on the def endant’ s sentence in which he is expected to pa y

.

We would further point out that the trial court’s relianc e upon the portion of the statute which allows for conver sion of an unpaid restitution amount to civil judgme nts is misplaced. That statute speaks to the order ed amount of restitution in a case ; it was not intended to serve as a “fr ee pass” in civil court to ensure a judgme nt of loss. The victim should pursue this matter direc tly in civil court and establish his case befor e a judge with jurisdiction to deter mine civil judgme nts, which the trial
court initially rec og nized during his statement to the victim at the first h ea ri n g. I t remains the fu n cti on of t he civil court to deter mine the j udg ment amount which shoul d be entered ag ain s t t h e defe ndant.

CONCLUSION

Ba sed upon the fore g oing, the case is r emande d to the McNa iry County Circuit Court with instruction to enter an order o f re s tituti on in the amount of $100 times the rema ining number of months on the sentence in which the def endant is expected to pa

y

.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J O H N E V E R E T T W I L L I A M S
, J U D G E

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