State v. JohnsonState v. Johnson
- Reporters:
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- Before:
- Summers
OPINION
SUMMERS, Judge.Thе appellant, Thomas Wayne Johnson, pled guilty to vehicular assault, carrying a weapon 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 participate in the community corrections program. In conjunction with his community corrections sentence, the appellant was ordered to make restitution to the victim of his vehicular assault, Curtis Wayne Jackson.
The appellant, who had been drinking, was driving at a high rate of sрeed when he struck a vehicle driven by Mr. Jackson, who was seriously injured. The appellant’s wife, a passenger in the appellant’s vehicle, was also injured.
On appeal, the appellant contends (1) that the manner in which his restitution was determined was not in accordаnce with the Criminal Sentencing Reform Act of 1989; (2) that his financial resources and future ability to pay were not considered as required by
After a review of the record, this Court reverses the judgment of the trial court and remands this case for a new sentencing hearing consistent with our guidance as set forth hereafter.
When an appellant challenges the length, range, or manner of service of a sentence, this Court conducts a
de novo
review with a presumption that the determinations made by the trial court are correct.
The appellant bears the burden of showing 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 presentence report; (c) the principles of sentencing; (d) the arguments of counsel; (e) the nature and characteristics of the offense; and (f) the appellant’s potential or lack of pоtential for rehabilitation or treatment.
Furthermore, when an appellant challenges the amount of restitution ordered by the trial court, this Court’s review of the amount of restitution and how it was computed shall be conducted
de novo,
on the record, with a presumption that the detеrmination made by the trial court is correct.
First, the appellant argues that the trial court erred in the manner in which his restitution was determined. He maintains that the presentence report was silent regarding restitution, stating only that “[rjesti-tution is to be determined.” Appellant contends that because the state did not strictly comply with
The state admits that the trial court failed to order documentation regarding the amount of the victim’s loss in the presentence report. It maintains that such a failure has been held to be harmless error, when a subsequent “hearing was specifically held to give thе 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 state contends that “even though this information regarding the victim’s lost wages was absent from the presen-tence report, the defendant suffered no prejudice from its omission, and he was given 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 presentenee report was harmless error, when the defendant was given full consideration under the law regarding restitution in a subsequent hearing. Id. However, in that case, the presentenee report “contained the victim’s statement of his loss, but it did not specify what could be attributed to the defendant.” Id. In this case, the pre-sentence report contains nothing about the victim’s losses. The appellant was ordered to pay restitution in an undetermined amount not only for the victim’s rehabilitation expenses but also for his lost wages. Appellant’s argument that had he received any information before the sentencing hearing of the victim’s lost wаges, he could have argued for a more appropriate amount in restitution, is persuasive. He should be afforded this information at a new hearing.
Second, the appellant contends that the trial court erred in failing to consider the defendant’s financial resourсes and his future ability to pay or perform as required by
At the time of the sentencing hearing, the appellant was a twenty-five year old, unemployed factory worker who had earned approximately $16,000 to $20,000 a year for the past couple of years. Although the pre-sentence report did not show any information about the victim’s losses, it did show the appellant’s assets of $1,400 (a 1984 automobile) and debts totaling almost $80,000 ($75,000 of which were medical bills for his estranged wife who was injured in the accident). From the record, the last week or two that the aрpellant was employed his wages were garnished to pay for his own debts. Nevertheless, the appellant had agreed to pay a total of $4,000 in monthly amounts toward therapy costs of the victim, Mr. Jackson. However, at the sentencing hearing, the trial court ordered that the restitution for the victim’s rehabilitation expenses be set at $4,000 and be open ended as to the amount because the victim might require additional treatment. The trial court did not include the victim’s hospitalization expenses in the restitution order. In addition, the trial court orderеd an additional amount of restitution of $2,000 per month for lost wages retroactive to August 1994, the date the accident occurred, and continu-
In determining restitution, the trial court must consider what the defendant can reasonably pay given the appеllant’s means and future ability to pay.
This Court recognizes that the appellant in this case has these same living expenses in addition to debts totaling almost $80,000 that he has to pay, even though he is unemployed. While we acknowledge that the victim, Mr. Jackson, has incurred rehabilitation costs and lost wages, the trial court, in determining restitution, must also consider what the appellant can reasonably pay. An order of restitution which obviоusly cannot be fulfilled serves no purpose for the appellant or the victim.
For his third and fourth issues on appeal, the appellant argues that 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 future health care expenses and lost wages.
There is no formula or method for determining restitution.
State v. Stewart,
No. 01-C-01-9007-CC-00161, 1991 WL 8520 (Tenn.Crim.App. at Nashville, Jan. 31, 1991). Restitution may be ordered for a crime victim’s “pecuniary loss,” which means all speсial damages as substantiated by evidence in the record or as agreed to by the appellant, but not to include general damages.
Furthermore, the appellant contends that the trial court erred in imposing excessive restitution in large, undetermined amounts for health care expenses and lost wages. The appellant argues that the restitution awarded in this ease “is not reasonable in that it attempts to mirror a civil tort action.”
The victim, who at the time of the accident had been laid off from his job, worked as a repairman of electronics equipment. He testified that when he was employed, hе earned approximately $300 per week in addition to bonuses and that he earned approximately $2,000 per month. From the record, appellant’s counsel noted several times that the amount of restitution for the victim’s lost wages was equal to the victim’s statement оf his wages while he was employed by his previous employer. Also, appellant’s counsel noted in his brief that the purpose of the restitution statute was not “to mirror a civil tort action.”
Because the amount of money that this fellow can pay in at any reasonable rate is pittance. It’s not going to provide him [the victim] what he needs. It’s not going to begin tо pay back the lost 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 would make everybody whole in this case.” (emphasis added). Furthermore, in the state’s brief, it admits 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 occasions with regard to restitution. The relevant language from that case states that “[t]he statutory scheme ... does not require the sentencing court to determine a defendant’s criminal liability for restitution in accоrdance with the strict rules of damages applicable to a civil ease.” Id. at 507.
Moreover, the trial court stated that any amount of restitution it imposed would be offset by any amount awarded in the civil action against the appellant. Mr. Jackson, the victim, apparеntly had received a default judgment against the appellant in a civil suit as a result of the accident. In determining the amount of restitution, the trial court commented several times that the restitution for lost wages would be concurrent with the civil judgment against the defendant and any amоunt ordered in the civil judgment would offset the restitution ordered as a condition for probation. At the time of the sentencing hearing, the amount of the civil judgment had not been set.
Furthermore, this Court in
State v. Irick
held that “ basing the amount of 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
This Court respectfully reverses the judgment of the trial court and remands this case for a new sentencing hearing consistent with this opinion. The terms of restitution should be definitive, consistent, and separate from other judgments. The length and terms of probation and restitution should be set so as to compensate the victim and punish the appellant. Should the appellant’s financial status change during the probationary period, the court can adjust the restitutionary amounts and terms accordingly.
PEAY, J., and CORNELIA A. CLARK, Special Judge, concur.