1 Th is case was heard as pa rt of the M ay 28 , 200 3, S.C .A.L.E .S. ( S upreme C ourt A dvancing L egal E ducat ion

for S tudent s) project

in Cookevil le, Put

nam County, Tennessee. 

### IN THE SUPREME COURT OF TENNESS EE

AT KNOXVILLE May 28 , 2003 Ses sion Heard a t Cookeville 1



### STATE OF TENN ESSEE v. KEENA MATHES
Appeal by P

ermis sion from

the Court

of Crimi nal Appeals Criminal Court for Washington County No. 25717 Robert E. Cupp, Judge

No. E2001-00753-SC-R11-CD - Filed August 27, 2003

In this appea l, the ap pellant asserts that the trial court erred in ordering that she legitimate her you ngest ch ild as a c ondition of probation. Having carefully reviewed the issues raised by the pa rties, we hold th at the tri al court erred i n requir

ing the a ppellant to legiti mateher chil d as a
c ondi tion of proba

tion. Acc ordingl

y, w e rever se the jud

gment of the Court o f Criminal

Appeals affirming the legitimation condition and remand the case for proc eedin gs cons istent with this opinion.
Tenn. R. App.P. 11 Appe al by Per mission; Judgment

of the Cour

t of Crim inal Appeals Reversed; Case Remanded

J ANICE M. H OLDER , J., delivered the opinion of the court, in which F RANK F. D ROWOT A , III, C.J., and E. R IL EY A NDERSON , A DOLPHO A. B IRCH , J R ., and W IL LI AM M. B ARKER , JJ., joined.

DeborahBlack Huskins and David F. Bautista, Johnson City , Ten nessee , and Steve McEwen, Mountain Ci

ty, Tenness ee, for

the Appellant, Ke ena Math es.

Paul G. S ummers , Attorney Gene ral and Reporter; Michael E. Moore, Solicitor Genera l; and Christine M. Lapps, Assistant Attorney General, for the Appellee, State of Tenne ssee.-2- OPINION

I. Factual and Proc edural Background

On Jan uary 5, 2000, the Grand Jury for Washing ton County, Tennessee, re turned an indictmentcharging Keena Mathes, the appellant, with aggravated a ssault. On May 17, 2000, a jury found Ms. Mathes guilty of the le sser offense of reckless ag gravated assault. I n the s entencing hearing on May 8, 2001, the trial cour t acknowledged

that Ms. Ma

thes was eligible for judicial diversion pursuant

to Tenne sse e Code Annotated section 40-35-313. The trial court, however, sentenced Ms. Mathes to the minimum term of two years a s a Range I standa

rd offender and placed her on probation for three y ears. The trial court o rdered her to pay

$1,187.40 in restitution to the victim for medical bills and lost wages as a result of the assa ult. The trial court also reduced the $4,000 fine pre

viously assesse d by

the jury to $500. Th

e restit ution and fines were ordered to be paid in $75 monthly installments. Finally , as condition s of proba ti on, the co

urt requ ired tha t Ms. Mathes provide a DNA sample and that she legitimate he r young est child.

The presentence report

and proof at the sente ncing h earing s howed that M s. Mat hes is a high school graduate, has no prior adult cr iminal re cord, do es not use illegal drugs or abuse alcohol, and has no mental or physical proble ms. She has an eight-y ear-old son and a nine-month-old daughter by two different fathers. The twochildren reside with her. Ms. Mathes has never married, and no child support has been ordered for either child. Ms. Mathes te stified th at she wo rks full- time earning $6.25 per hour and that she sometimes works overtime. She earns between $435 and $525 in a twoweek pay period. M s. Mathes recited her month

ly e xpenses as follows: $289 for rent, $50-$60 for utilities, $200 for food, $200 for babysitting, $40 f or transportation to work, and $40-$50 f

or cable television. Her mother and aunt assist her by providing clothing for her children. In addition, the father of her young est child helps her finan c ially and assists in caring for their daughter when she is at work. In the prese

ntence report, Ms. Mathes stated that she could pay be

tween $25 and $50 per month towa

rd restit ution or f ines.

Th e trial court concluded that Ms. Mathes could not afford to pay the $7 5 per month i n restitution ordered

by the trial

court unless she received court-order ed child support. The court was concerned

that the a dditional $ 75 monthly

expense w ould compr

omise Ms. Ma

thes’ ab ility

to meet her children’s basic needs. As a condition of h erprobatio n, the cou rt order ed Ms. Mat

hes to le gitimate her y ounges t child an d to seek c hild suppor

t. As autho

rity for this c onditio n, the tria l court relied u pon Tenne ssee Code

Annotate d section

40-35-30 3(d)(1) , which a llows the c ourt to impose condition s of proba

tion requ iring a defenda nt to meet h

is or her family responsibilities. The trial cou rt did not o

rder Ms. Mathes to

legitima te her ol dest child

because the child ’s fathe

r is in a fe de ra l p en it en ti ar y.

Ms. Mathes objected

to the legitimation condition, and she a ppealed . The State

agree d with Ms. Mathes that

the trial court ha s no author ity t o requir e that she legitima te her da ughter . In s pite of the positions of Ms. Mathes and the State, the Court of Criminal Appeals affirmed the trial court’s order that Ms. Ma

thes leg itimate he

r y ounges t child a s a condition of probation. However, the-3-

intermediate appellate court recognized that a judgment of conviction and suspended sentence are inconsistentwith a grant of jud icial div ersion and remanded the case to the trial cour t for clarification. See Tenn. Code Ann. § 40-35-313(a)(1)(A) (1997 & Supp. 2001) (stating that upon

a finding of guilt, “[t]he court may defer further proceeding s against a qualified defendant and plac e such defendant on

probation upon such reasonable conditions as it may require without entering a judgment of guilty . . . .”) ( emphasis added). We gran ted perm ission to appeal to determine whether the trial court erred in requiring the a ppellant to legitimate her child as a condition of probation.

II . Standard of Review

We review sentencing issues de novo with a presumption that the cour t’s ord er is cor

rect. See Tenn. Code Ann. § 40-35-401(d) (1997). This presumption of correctness is “c onditioned upon the affirmative showing in the record that the trial court considered

the sente ncing p rinciple s and all relevant facts and circumstances.” See State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The appellant has the burden of showing that a sentenc e is improper. Id.

II I. An aly sis

Tennessee Code Annotated section 40-35-303(d) permits the trial court to impose conditions

on probation. The trial court relied upon Tennessee Code Annotated s ection 40-35-303(d)(1) as author ity for req uiring that Ms. Mathes legitimate her y oungest child. This section permits the imposition of condit

ions to “[m]e et the of

fender ’s f

amily responsibilities.” Tenn. Code Ann. § 40-35-303(d)(1) (1997 & Supp. 2001). We do not agree, however, that this section authorizes the trial court to require that she legitimate her daug hter as a condition of probation.

The record

does not show that Ms. Mathe s is failin g to mee t her fa mily responsi bilities. I ndeed, the trial court commented, “I don’ t question she’s a good momma,” and “[she] is doin g everything

that she can to support these children. She’s got a g ood j ob.” Clearly, M s. Mathes is support ing her children, as the law requires. SeeTenn. Code Ann. §§ 34-1-102(a), (b) (2001)
, 39-15-101 (1997). We

disagr ee with the trial court that Ms. Mathes has an “oblig ation” to legitima te her children and that her failure to do so shows she is not meeting her

family responsi bilities. Wh

ile child support obligations are mandatory and a parent may

be crimina lly p

rosecut ed for f ailure to support, Tennessee law does not impose an obligation on the mother of an illeg itimate child to take steps to legitimate that child. Thus, we conclude that the condition that Ms. Mathes legitimate her daughter does not fit under the enumerated condition in section 40-35-303(d)(1), to “ [m]eet the offender’s family

responsibilities.”

Fur thermore, we do not find that this condition is proper under the “catch-all” provision
, subsection (9) of Tennessee Code Annotated section 40-35-303(d), which provides that a court may specify a condition of probation that is “reasonably related to the purpose of the offender’s sentence and not unduly

restrictive of the offender’s liberty , or incompatible with the offender’s freedom of conscience, or other

wise prohibited by this chapter.”The requirement that Ms. Ma

thes leg itimate-4-

her daught er is notreasona

bly related to the pur

pose of he

r senten ce. Wheth

er the c hildren o f Ms. Mathes are legitimated or not simply has no relationship to her offense.

Alth ough the T enness ee Criminal Sentencing Reform Act of 1989 give s trial courts great latitude in formulating punishment, t he sentences imposed must conform to the principles of sentencing set forth in the Act. See State v. B urdin , 924 S.W.2d 82, 85 (Tenn. 1996). Tennessee does not permit courts to impose punishments that are “beyond the bounds of traditional notions of rehabilitation.” Id. at 87. We have noted that “[t]he primary g oal of probation, under the Act and the decisions of

the appellat e courts of this state, is rehabilitation of the defendant.” Id. at 86. Anot h er goal of punishmen

t include s “[p]rovidi ng an e ffectiv e gene ral dete rrent to t hose likely to violate the criminal laws of this state.” Tenn. Code Ann. § 40-35-102(3)(A) (1997). The probation condition at issue does not se rve either the g oal of re

habilitat ion or the goal of deterr ence. T here is

no showing

th at as a

result of legitimating her daughte r Ms. Mathes would become a more productive member of society or would be less likely to commit another a ssault.

In determining the validity of the condition of probation that Ms. Mathe s legitimat e her daughter and seek

child supp ort, the trial court and Court of Criminal Appeals rely on the contemporaneous require ment that s he pay

restitutio n. “Encouragin g restitution to victims where appropriate” is one of the goal s of sente ncing. Tenn. Cod

e Ann. § 40 -35-102( 3)(D) ( 1997). I t is within th e t ri al co ur t’ s a ut ho ri ty t o require, as a condition of probation, that an offender “[m]ake appropr iateand reasona

ble resti tution to the

victim or the family of the vic tim involved . . . .” Tenn. Code Ann. § 40-35-303(d)(10) (1997 & Sup p. 2001); see also Tenn. Code Ann. § 40-35-304(a) (1997 & Supp. 2001). The amount of restitutio n must

be determined by

considering the offender’s financial resources and future ability to pay

. See Tenn. Code Ann. § 40-35-304(d) (1997 & Supp. 2001). Furthermore, pay

ment of restitution must not extend beyond the probation per iod. See Tenn. Code Ann. § 40-35-304(g)(2) (1997 & Supp. 2001).

Alth ough Ms. Mathes said that she could afford to pay between $25 and $50 per mon t h toward restitutio n or fine s, the tria l court se t rest itu tion at $75 , an amoun

t the cour t believe d Ms. Mathes could not afford. The trial court expressed its belief that the payment of restit ution would render her unab le to meet

her fam ily r esponsibi lit ies w ithout court-ordered support from her daughter’s father. The trial c ourt stated,

If I set [restitution, fines, and court costs] at fifty dollars a month, she can’t meet the r

esponsibi lity

in the three ye ars I’ve g ot her on. If she

was receiv ing c hild suppor t to pay for . . . th

ings such as rent , help with the food a

nd those so

rts of thin gs, she

wouldn’t b e in th i s position.

The amount

of restit ution orde

red, how ever, “ does not ha ve to equal or

mirror th e victim’ s precis e pecuniary loss. Moreover, the sum must be r easonable.” State v. Smith , 898 S.W.2d 742, 747 ( Tenn. Crim. App. 1994). The trial court erred in attempting to facilitate pa yment of its or

der o f restitution by requiring

Ms. Mathes to legitimate her daughter and pur sue child support. The trial-5-

court simply should have set the restitution at an amount it belie ved Ms. Ma

thes coul d reason ably pa y. See id. (remanding the case so tha t re stitution could be set in an amount that the defendant could reasonably

pay, based on his e arnings and expenses, during the time he is in the trial court’s jurisdiction); see also

Tenn. Code Ann. § 40-35-304(d) (1997 & Supp. 2001) (providing that the trial court shall consider

the financial resources and future a bility of the defenda

ntto pay in determining the amount and method of pay ment).

Ms. Mathes c ontends th at th e tri al court’s order requiring that she leg itimate her daughter unconstit utionally infringes upon her right to privacy and equa l prot ecti on of the la w. We need not consider this contention bec ause the pr obation condition imposed is invalid. Courts refrain from deciding constitutional issues if a case may be resolved

on nonconstitutional grounds. See Statev. Elkins , 83 S.W.3d 70 6, 713 (Te nn. 2002) ; State v. B urdin , 924 S.W.2d 82, 87 (Tenn. 1996).

IV. Conclusion

In conclusion, the trial court may notre quire Ms. Mathes to legitima te her da ughter as a condition of proba

tion. We the

refore revers e that pa

rt of the C ourt of Cr

imin al Appeals’ o pinion upholding the legitimation condition and remand this case to the trial court for proc eedin gs consistent with this opinion. On remand, the trial court should clar

ify whether Ms. Mathes sh ould receive a suspended sentence or whether she should be granted judicial diversion. I n addition, if the trial court’s finding

that Ms. Ma

thes can not affo rd the re stitution it o

rdered is corre ct, then th e amount of restitution should be reduced. Costs of this appeal are taxed against the State.

___________________________________ JANICE M. HOL DER, JUSTI

CE