# FILED
July 18, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON JAN UA RY SESSION , 1997

STA TE OF TENN ESSEE, ) ) No. 02C01-9610 -CR-00348 Ap pellee ) ) SHELBY COUNTY vs. ) ) Hon. BERNIE WEINMAN, Judge HEATHER R. DOWDY, ) ) (Agg ra vat ed Bu rg la ry; Appellant ) Theft of property

worth less than fiv e hundred dollars) For the Appell ant : For the Appell ee : R. PORTER FEILD CHA RLES W. BUR SON Burch, Porter

& Johnson Attorney Gen eral and Repor ter 130 North Cour

t Avenue Memphis, TN 38103 LISA A. NA YLOR Assistant Attorney Gener al Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-0493
WILLIAM GIBBONS Distric t Attorney General P. T. HOOVER Asst. Dist rict Attor ney General 201 Poplar Avenue, 3rd Floor Memphis, TN 38103

OPINION FILE D: REMANDED

David G . Hayes Judge2 OPINION
The appellant, Heat her R. Dowdy, pled g uilty i n the Shelby County Crimi nal Co urt t o one coun t of aggrava ted b urgla ry, a cl ass C f elon y, and two counts of thef t of property valued less than five hundred dollars, class A misdemeanors. Pur

suant to the plea agreement, the t rial court imposed concurrent s entences of three years incarceration in the county workhouse for the burglary conviction and eleven months and twenty-nine days incarceration in the county w

orkhouse for each of the theft convic tions. Foll owing a sentencing hearing, the trial cour

t suspended the sent ences, except for one hundred and eighty days to be served on weekends. Additionally, the trial court imposed six years of intensive probation. The con ditions of probation inclu ded restitution in the amount of $7,200.00, to be paid in monthly installments

of $100.00, one hun dred hour s of comm unit y servic e, an d a 9: 00 p. m. cu rfe w.
On Apr il 26, 1996, t he appel lant fi led a motion pu rsuant to Tenn. R. Cr im. P. 35(b) for reduction of her sent ence. On May 10, 1996, the tri al court deni ed the appellant’s

motion. The appell ant now appeal s the trial court’s deni al of her motion and also appea ls pursuant to Tenn. Code Ann. § 40- 35-401 (1990). Specifically , the appellant c hallenges th e amount and terms of re stitution and, conseq uently , the l ength of her p robati onary perio d; the i mposit ion of a 9:00 p. m. curfe w; and the requirem ent of drug testi ng and co unselin g.
I. Factual Background On March 29, 1 996, the trial court conducte d a hearing i n order to determine the manner

of serviceof the appellant’s sentences. The appel lant testified that shewas employed by a company called “We Rep You Advertising Agency.” She worked four days eac h week and was paid $5.00 per hour. She further testified that she had only completed the nint h grade in s chool but had1 The appell ant al so indi cated t hat she dr ank heavi ly for app roxi matelyone y ear atthe age of ni neteen. She assert ed thatshe no l onger abused a lcohol or dru gs.

2 T he pre -s en ten ce rep or t ind ica tes tha t the ap pe llan t’s c o- de fe nd an t wa s s en ten ce d to six year s incar cerat ion, presumablyin t he Department ofCorrect ion. The appell ant t esti fi ed that Marino i s current ly

servi ng his sentence. 3 obtained a GED. The ap pellant resides with her current boyfriend, who owns a small business.
The appellant’s criminal record con sists of a 1992 conviction for disord erly conduct and publi c intoxi cation, a 1991 con viction for DUI, and a 1991 convicti on for a traffic of fense. She was placed on prob ation pursuant to the DUI conviction. Her probation was revoked following her conviction for disorderly conduct and publi c intoxi cation. Additi onally, th e appellant admitt ed to the presentence investigator that she had prev iously experimented w ith marijuana and cocaine. 1 At the hearing , the appellant r eaffirmed her guil t of the instant offenses and asserted that she accepted responsibili ty for her c rimes. She recounted that her

co-defendant, Scott Marino, had been her boyfrie nd at the time of these of fenses. She explained tha t she and Marino decided to com mit the burglar ies or thefts because they were unemployed and needed money. The appellant testi fied that Marino had previo usly been convicted of burglary and was convicted of burglary

in this cas e. 2 Finally , she further ass erted that her boyfriend was abusive and was the principle actor in the commission of these crimes.
The appellant testi fied at the hearingthat she could probably pay $100.00 per month towa rd restitut ion to the v ictims. The v ictim impact statements inc lude d in the r

ecor d in dic ate t hat, wi th respe ct t o themis demea nor theft convictions, the appellant stole jewelry and silver flatware worth approximately $7,606.00 from her aunt, Jane Graham. Doug lass Curr y, the appell ant’s stepfather and the vi ctim of the second th eft, indicated that he did not want restituti on from the appellant and declined to st ate the value of any property stolen from3 Ag ain, the app ellant a lso c hallen ges the trial co urt’s d enia l of he r m otion p urs uan t to Tenn. R. Cri m. P. 35(b) for r educti on of hersentence. In cont rast to t he standar d of rev iew applicable to sentencing appe als perfected pursu ant to Tenn. C ode An n. § 40-35-401 (d), app ellate re view o f Ru le 35( b) ru lings is g ove rned by the “a bus e of d iscre tion” s tand ard. State v. Iri ck , 861 S.W .2d 3 75, 3 76 (T enn . Crim . App . 199 3); Stat e v. Burden , No. 02C01-9509-CC-00267 (Tenn. Cri m. App. at Jackson, February 5, 1997). Clear ly , t herefor e, a det erminati on of t he app ellant’s T enn . Co de A nn. § 40-3 5-40 1(d) app eal w ill also res olve h er R ule 35 (b) a ppe al. 4 him by the appellant. W ith respect to the felony burglary conviction, the victim Patti Ramsey reported that the ap pellant stole property worth approximately $3,465.37.

II. A nalys is Pursuant to Tenn. Cod e Ann. § 40-35-401(d) (1990 ), review by this court of the manne r of service of a sentence is de novo with a pr

esumption that the determination made by the trial court is cor rect. 3 This presumption only applies, however , if the record demonstrates that the trial court properl y consider ed sentencing pr inciples and all relev ant facts and circumstances. State v. Ash by , 823 S.W.2d 166, 169 (Tenn. 1991). In any event, the appe llant bears t he burden of establishin g that the sentences impose d by the trial court are
erroneous. State v. Lee , No. 03C01-930 8-CR-00275 (Tenn. Crim. App. at Knoxville, April 4, 1995).

At the conclusi on of the sentencinghearing, t he trial cour t stated: I'm going to place you on six years probation ; restituti on at a hun dred dolla rs a m onth . As pa rt of that prob atio n you a re to serve 180 days at th e Shelby Co unty Corr ectional Cente r startingat 7:00 p.m. on Friday

until 7:00 p.m. Sunday, every weekend -- so y ou can continue to w

ork and make thi s restituti on. In addition, do a hundred hours of communi ty serv ice. That's i ntensive pr obation and that 's a 9: 00 p. m. cu rfe w.
The appel lant c halle nges t he cond ition s of her probat ion, i .e. theterms and amount of restitut ion, the imposi tion of a curfew, and mandatory d rug testing.5 A. Imposition of Special Conditions

Fir st, we r evi ew t he ap pell ant’ s cl aim t hat t he tr ial cour t’simpo sit ion of a 9:00 p.m. curf ew is im prop er. T he ap pell ant c onte nds t hat t he cu rfe w is “un duly” restricti ve of her li berty. Tenn. Code Ann. §40-35- 303(d)(9). Specifically , the appellant contends th at, as a result of the curf ew, she is unable to accept fulltime employment at a convenie nce store at ni ght. However, the Pr obation Order clearly authorizes

the appellant’s

probation officer “

to give permission for night employment if neces sary.” In light of the probation officer’ s authority , we do not find that the condit ions of the appellan t’s probation are unduly burdensome. Moreover, should the appellant enco unter insurmountable obstacles in complyingwith the conditions of her probation, Tenn. C ode Ann. §40-35-308 (1990) permits

the appellant or

her probation officer to apply to the trial court for the modification or

removal of any

condition.
With respect to the appellant’ s challeng e to conditions of her probation relating to drug test ing and counse ling, the r ecord before this

court does not ref lect that any su ch co ndit ions were im pose d by th e tria l cou rt. T here for e, we are unable to con sider this issue. See Tenn. R. App. P. 24( b) (it is the appellant’s obl igation to h ave preparedan adequate record in order to allow meaningful review on appeal).

B. Restitution
The appellant chall enges the tri al court’s imposition of restitution in t he amount of $7,200.00, to be pai d in monthly installments of $100.00. She arg ues that the trial court, in i mposing rest itution, did n ot adequately account for her ability to pay or her

co-defendant’s par

ticipation i n the crimes. Moreover , she6

contends that, because the trial court did not consider thes e factors in impos ing restitution, it could not impose a probati onary peri od of six years in order to accommodate the pay ment schedule.
Tenn. Code Ann. § 40- 35-304(a) (1 996 Supp.) authori zes the sent encing court to impose restitution as a condition of probation. Tenn. C ode Ann. §40-35- 304(c) prov ides that a cour t must establis h a restituti on payment schedu le that does not extend beyond the m aximum term of probat ion supervision that could have been imposed for the offense. A court may place a defendant on supervised probation for a period of time up to and includ ing the statutory maximum time for th e class of conv iction offense. Tenn. C ode Ann. §40-35- 303(c). Thus, the trial court was authorized to impose a probat ionary per iod of six years for the offense of aggravated burglary and extend the appellant’s restitution payments for thi s crime over that time. See 40-35-111(b) (3) (1990).

W ith respect to the appellant’s con tention that the order of restitution fails to account for her

co-defendant’s pr

oportionate li ability, we disag ree. In essence, the appel lant asks that we adopt some form of comparative fault for the purpose of determini ng restit ution in cri minal cases. This we decl ine to do. While this court has taci tly acknow ledged the tr ial court’ s authority to impose join t and several liabilit

y for resti tution upon co-defendants, see, e. g. , Stat e v. Roberts , No. 01C01-941 0-CC-00332 (Tenn. Crim. App. at Nashvi lle, Marc h 10, 1995), and State v. Aki ns , No. 134 (Tenn. C rim. App. at Knox ville, June 28, 1991), the 1989 Senten cing Act do es not requi re the div ision of resti tution responsibil ity. In a ny case, we recogniz e that the polic y expressed by the legislature in the 1989 Sentencin g Act is that the punishment impo sed should fit the crime and the offender. State v. B oggs , 932 S. W.2d 467, 477 (Tenn. C rim. App.), perm. to appeal deni ed , (Tenn. 1996). See also Johnson , No. 03C01- 9606-CC-00214( restitution is not only a means of compensatingthe victi m, but4 The a ppellant’s pl ea bargain agre em ent perm itt ed her to plead to m isdem eanor theft which i nvol ved a l oss from the vi cti m, Jane Graham , of$7607.00. As previ ously noted, the second misdemeanor theftinv olv ed the v ict im’s st epfat her and no r esti tut ion was so ught. The burgl aryconvi cti on inv olv ed the v ict im, Patt i Ramsey, and rest it uti on of $3590. 37. 7 also a form of punishment) . In the contex t of this polic

y, the appell ant acknowledg ed at the sentenci ng hearingthat she wa s a full parti cipant in the burglary . Moreover, the recor d does not reflect that the co-defendant, Marino, was convicted for the incidents resulting in the appellan t’s theft convictions.
Next, the ap pellant arg ues that the tri al court failedto consider her ability to pay in awarding restitution. The record reflects that th e appellant is a single person who lives w ith her boy friend and currently earns $5.00 per hour. The appellant testi fied at the hearingthat she could make scheduled restitution payments of “probably about a hundred dollars a month. ” Based on these facts, the trial court ordered r estitution pay ments of $100.00 per month. The appellant offered no other proof at the hea ring relating to her ability to pay. We fin d this issue wi thout merit.
In performing our

review of the issues i n this case, we are constrai ned to note that the tri al court, i n orderingrestitutio n, combined the pecun iary lo sses of both victi ms into one pay ment and ordered that this amount be repaid over the seventy-two month peri od of supervis ion for the agg ravated burglary convicti on. This, in effect, permi tted the resti tution for the mis demeanor convi ction to be repaid over

a six year period. 4 The plain lan guage of our statute requi res that restitution as a condition of probation be rel ated to the offense that warrants the probation. See Tenn. Code Ann. § 40 -35-304(a). In other words, the trial court cannot order a restitution paymen t schedule extending beyond the statut ory maximum term for t he offense occasioningthe restitut ion, or attach the restitution schedule to an un related offe nse. Moreover, the proof in the record pertaining to the losses of the two v ictims confli cts wit h that amount set by the5 The vict im impact sta tements rev ealed thatJane Graham sustained a loss of $7, 606.00, whil e Patt i Ramsey suff ered l osses amounting t o $3590.37 , a t otal of $11, 196.37. Apparent ly , t he trial cou rt acc epte d the State 's arg um ent in d eterm ining th e am oun t of res titution. T he S tate argued t hat Graham sustai ned a l oss of $3700 an d Ram sey, a lo ss of $3590. 37, t otal ing $7290.37.

6 The tri al court may concl ude thata probat ionary per iod ofsix years for the aggr avated burgl aryoffense is st il l appr opri ate. However, it must base it s deter minati on on fact ors ot her t han the pay ment schedule f or rest it uti on to v ict ims of anot her off ense.

7 W e w ou ld n ote tha t m an y of t he pro ble m s p re se nte d in this ca se co uld be elim ina ted by careful ly

constr ucted pl ea agreements. 8 trial court 5 and t here is no a ppo rtion men t of the re stit utio n bet ween t he two victims. Accordingly, we find it necessary to remand this case for a determination of the a mount of restituti on applicable to each offense, the imposition of pay ment schedules i n accordance w ith this opi nion, and a determination of the a ppropriate pr obation period. 6 7
Notwithstanding our decision to remand, we also note that the victim impact statements, included in t he record, reflect that the pro perty stol en from Ms. Graham and Ms. Ramsey was insured and that their respe ctive insurance companies have paid these claims. W hether or not an insurance com pany is a "victim" contemplated by t he legisl ature in prov iding for repayment of resti tution to "victi ms", see Tenn. Code Ann. § 40- 35-304, is cur rently pend ing before our supreme court. Thus, although t his court has held an insur

ance company to be a victim for purposes of restitution, thi s issue may be moot dependant upon the decision of our s upreme court. See State v. Alford , No. 02C01-950 9-CC-00281 (Tenn. Crim. Ap p. at Jackson, Sept. 30, 1996), perm. to appeal g ranted , (Tenn. Apr. 14, 1997).
For the foregoing reasons, this case is remand ed consistent with this opinion.9 ____________________________________ DAVID G. HA YES, Judge

CONCUR:

__________________________________ PAUL G. S UMMERS, Ju dge

__________________________________ THOMAS T. W OODALL , Judge