### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J uly 9, 2002
STATE OF TENNE SSEE v. BREND A MCKE NZIE
Direct Appeal from the Circuit Court for Chester County No. 01-116 Donald H. Allen, Judge

No. W2001-03061-CCA-R3-CD - Filed December 13, 2002

The appellant, Bre nda McKenzie, pled guilty in the Che ster County Circuit Court to one count of facilita ting the manufacture of methamphetamine and one c ount of possession of anhydrous ammonia, both Class E felonies. The plea agreement provided for concurrent sentences of two year s to be served on community c orrections. The appellant moved the trial court to waive or suspend the mand atory

fines on both offenses. The court denied the motion and the appellant now a ppe als

. Upon review of the record and the pa rties’ briefs, we affirm the judgment of the trial court. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cir

cuit Cour

t is Affirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which J OHN E VERE TT W IL LI AMS and A LAN E. G LENN , JJ., joined. Lloyd R. Tatum, Henderson, Tennessee, for the appellant, B renda McKenzie.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Jerry Woodall, District Attorney Gene ral; andKevin

Youngberg and Shaun A. B rown, Assistant District Attorneys Gene

ral, for the appellee, State of Tennessee

. OPINION

I. Fact ual Backgro

und The appellant was originally indicted for the manufacture of methamph et amine, possession of anhydrousammonia, and possession of drug parapherna lia. Subsequently, she

pled guilty to the facilitation of

the manufacture of methamphetamine and to the possession of anhydrous ammonia. Pursuant to the plea agreement, the appellant wa s senten ced as a standard Range I offender to tw o ye ar s f or ea ch co nv ic ti on wi th th e s en te nc es to be se rv ed co nc ur re nt ly. Ad di ti on al ly, the agreement pr

ovided that the a

ppellant ’s sente

nce woul d be serv ed on comm unity corrections. Fi na ll y, the agreement req uired the appellant to pay a mandatory f

ine of two thousand dollars ($2000) for the facilitation conviction and a mandatory fine of one thousand dollars ($1000) for the possession conviction. See Tenn. Code Ann. § 39-17-428(b)(9) and (12) (Supp. 2002).1 The recor d ref lect s t hat ther e were act uall y t wo moti ons he ard by the t rial court r elat ing t o this same is sue;
one moti on was hear d on November 30, 2001, and the ot her was hear d on December 17, 2001. Subsequent ly, the t rial court issued one w ritten ord er de nying b oth m otion s. The tri al court ’s order was dated December 31, 2001, and was f iled
on January 7, 2002. The ap pellant’s notice of appeal, which re fe rs to a No vember 30, 2001, judgment , was dated December 19, 20 01. N evertheless, “[a] pr ematurel y fi led noti ce of appeal shall be treated as fil ed after the ent ry of the judgment from which the appeal is t aken and on the day thereof.” Tenn. R. App. P. 4(d).
-2- Su bs eq ue nt ly, the appe

llant move d to wa ive or sus pend the mandator y f ines, contending that the f

ines would

impose “severe economic hardship” on her. At the hea ring on t his motion, the appellant testified that she had limited resources and after payment of her

bills she was “struggling.” Specifically, the a ppellant testified that she “brings home two fifty a week, and I ha

ve a lot of bills.” Regardless, the trial court found that the appellant wa s regularly paying th e s ev en tyfive dollars ($75) per month imposed by the court toward pay

ment of her ap po in te d a tt or ne y. Ac co rd in gl y, the court

noted that after the appellant paid those costs, she should be able to continue paying seventy -five do llars ($7 5) per mo nth towar d her fines. Howe

ver, the court a lso note d that it would revisit

the is sue if the appellant’s financial situation changed or if she continued to have difficulty making

the payments af

ter completing her community corrections sentence. II. Analysis Initi ally we note that “the decision of whether to gr ant a waiver of [ fines ] . . . rests within the court’s discretion; and that decision cannot be reversed in the absence of evidence in the record which ind

ic ates that ‘such discretion has been explicitly abused to the great injustice and injury of the pa

rty complain

ing.’” Sta te v. Black , 897 S.W.2d 680, 684 (Tenn. 1995) (quoting Douglas v. Estate of

Robertso n , 876 S.W.2d 95, 97 (Tenn. 1994)). Specifically, the appellant contends that the trial court should have sus pended or wai ved the ma ndatory fines pur suant to Tenn essee Code Annotated section 39-17-428(d)(1) because the fines imposed severe econom i c hardship upon the a

ppellant and her f amily . The stat

ute in que stion provides: Unless the judge, using the applicab l e criteria set out in § 40-14- 202(c), determines that

a person convicted of

violating this secti on is indigen t, or that payment of the minimum fine would result in a
severe economic

hardship , or such f

ine would otherwis e not be in

the interest s of justice, the minimum fines imposed by this secti on shall be man da to ry and shall not be reduced, suspended, waived or otherwise released by

the court. Tenn. Code Ann. § 39-17-428(d)(1).

As we earlier stated, a brief evidentiar y hearing was held on the appellant’s motion. 1 At the hear ing, the appella nt test ified reg arding her financial situation. At the conclusion of the December 17, 2001, hearing, the tria l court found: [The appellant ] a ppeare d before The Court

back in A

ugust of this year. She was not able to hire her own attorney , and at that time The Courtfound that she was partially indigent and was not ab le to hire her o wn attorney. . . . She wa s working and . . . bringing home . . . $250.00 a week. That was her take-home pa y eac h week. And-3- because of that, The Court felt like she could pay at least s ome partial reimb ursement

for her Court appointed counsel. . . . The C our t ordered her to pay tha

t at a r ate of $75.00 per month. She has been making those regular pay ments, it appears. . . .

. . . No w, i t was part of the plea agree ment that she would pay her fines and Court

costs at a

rate of $75.00 pe

r month. And I a ssume t hat she can make those pay

ments because she’s been pay ing to th e Clerk’s O ffice $ 75.00 a mo nth on her court ap pointed c ounsel fees. Now, at this time, The Court does not feel like she’s indigent and not able to pa y these fine s.
The trial court

also stated that

it would reevaluate the situation if the appellant had not paid her fines by the end of he

r two-yea r community corrections sentence. We agree with the trial court that the appellant has demonstrat ed an ability to pay seventy -five do llars per

month ($75 ) toward

courtappointed attorne

y’ s fees a nd should be able to continue those pay ments towardthe satisfaction of her fines. Th

e trial c ourt car

efull y c onsidered the appellant’s financial circumstance s and the sentencing principle s. While the appe llant’s a bility to pay a fine is a factor to be cons idered, it

is not
necessa rily a controlling factor. See State v. Patterson , 966 S.W.2d 435, 446 ( Ten n. Crim. App. 1997). In other words, “a s ignificant fine is no t automati cally preclud ed just be cause it

works a substantial hardship on a defendant – it may be punitive in

the same fashion incarceration may be punitive.” State v. Ma

rshall , 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993). Moreover, as the trial court noted, the court retains jurisdiction to m od ify the fines eve n after the final judgment. See Tenn. Code Ann. § 40-24-102 (1997) . Thus, w e conclu de that the trial c ourt did not abuse its discretion in failing to waive or suspend the mand atory fines impo sed upon th

e appell ant. See State
v. Cecelia M . B easley , No. 01C01-9801-CR-00018, 1998 Tenn. Crim. App. LEXI S 965, at *10 (Nashville, Sept. 16, 1998). This issue is without merit.
III. Conclusion Finding no error, we affir m the judgment of the trial court.

___________________________________ NORMA McGEE OGLE, JUDGE