State of Tennessee v. John Tyler Gilley

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 25, 2012

STATE OF TENNESSEE v. JOHN TYLER GILLEY

Appeal from the Circuit Court for Anderson County

No. B0C00059 Donald R. Elledge, Judge

No. E2011-01627-CCA-R3-CD - Filed September 25, 2012

In May 2010, the Defendant, John Tyler Gilley, pled guilty to aggravated burglary; as a

condition of his plea, he was placed on probation for four years and agreed to pay restitution,

with the amount of restitution to be determined at a later date. Following a hearing, the trial

court ordered restitution in the amount of $3,240, with the Defendant to make installment

payments of $90 a month. The Defendant appeals, arguing that the trial court’s imposed

restitution was excessive. The Defendant also asserts that the restitution award reflected on

the judgment, $9,370 (the victims’ pecuniary loss), is incorrect and contrary to law, requiring

him to pay beyond the expiration of his sentence. After reviewing the record, we affirm the

restitution amount but remand the case for correction of the judgment to reflect the proper

award of $3,240.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;

Case Remanded

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which JERRY L. S MITH and

R OBERT W. W EDEMEYER, JJ., joined.

J. Thomas Marshall, Jr., District Public Defender; and Katherine J. Kroeger, Assistant Public

Defender, for the appellant, John Tyler Gilley.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;

David S. Clark, District Attorney General; and Sandra N.C. Donaghy, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

No recitation of the facts underlying the offense is apparent from the record. The

record on appeal does not contain a copy of the indictment or plea agreement or a transcript

of the plea submission hearing. The judgment indicates that the Petitioner entered his guilty

plea to aggravated burglary in this case on May 17, 2010. We also glean from the record that

on this same date, the Petitioner entered a plea in cases A9CR0737 1 and A9CR0738. All

sentences were to be served concurrently, for an effective four-year sentence. It further

appears that as part of the agreement, the Defendant was ordered to pay restitution in the

amount of $250 to the victim in case A9CR0737. The Defendant also agreed to pay

restitution in the present case, with the parties agreeing that the amount of restitution would

be set at a later date.

At the outset of the February 25, 2011 restitution hearing, the parties stipulated that

the victims’ total loss was $9,370—$9,270 owed to Sandra Lewis and $100 to Smoky

Mountain Pawn Shop. The Defendant apparently stole jewelry and other items from Ms.

Lewis and then pawned some of that jewelry to Smoky Mountain Pawn Shop for $100. Ms.

Lewis maintained insurance on all of the items except the jewelry. She had to pay her

insurance company a $1,000 deductible to receive compensation for the covered items and

$8,270 was the value of the jewelry for which Ms. Lewis was not insured.

First to testify was the Defendant’s mother, Kyra Gilley. She testified that her twenty-

year-old son resided with her. According to the Defendant’s mother, the Defendant was in

Special Education throughout his schooling, and after “finishing out” his senior year “in a

Christian school,” he obtained his general equivalency diploma (“G.E.D.”). Ms. Gilley

explained that the Defendant’s learning disability was “in reading and in comprehension. .

. . [The Defendant] is very good with his hands but when it comes to comprehending as in

money exchange or . . . reading and comprehending what he’s read, that’s very hard for him.”

According to Ms. Gilley, the Defendant read at a sixth grade level. She opined that his

difficulty with exchanging money would hinder his ability to work a cash register.

Ms. Gilley acknowledged that her son did not currently have a permanent job. She

was also aware that he was on probation and had certain financial obligations pertaining

thereto. When asked how the Defendant got money to pay his obligations, Ms. Gilley

responded,

[The Defendant] has been very good in wanting to pay those obligations, and

he does in the summer have a couple of neighbors that he does their

lawnmowing and he helped their elderly and he helps them . . . with yard work.

1

At the restitution hearing, the assistant district attorney general stated that this conviction was also for

aggravated burglary.

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And they pay him for that. He has to do things around our house to earn

money to make sure he pays his fines on time.

Ms. Gilley relayed that the Defendant paid monthly fees of $25 to the Anderson County

General Sessions Court, $25 on a fine to the City of Oak Ridge, a probation fee, and

restitution as ordered in the other case.

She claimed that the Defendant “want[ed] to work” and that they looked in the paper

and on the internet for jobs. According to Ms. Gilley, the Defendant submitted applications,

but his felony record interfered with him getting interviews. Ms. Gilley had to help the

Defendant fill out the applications. As of the date of the hearing, the Defendant had been

unsuccessful in finding gainful employment. Ms. Gilley testified that the Defendant also

helped with “side jobs” when they were available and that he possessed “good skills” in

painting and remodeling, which he had learned from his father. These side jobs were in

addition to mowing lawns.

Ms. Gilley testified that the Defendant had no transportation and that she or his father

drove him to the probation office for his appointments and drove him to job interviews.

According to Ms. Gilley, the Defendant “basically stay[ed] home.” She also took the

Defendant for a psychological evaluation ordered by the probation department. As a result

of that evaluation, the Defendant was attending a “vocational rehabilitation program.”

According to Ms. Gilley, the Defendant was eligible for “state tuition to help him,” and he

was “in the process of getting things together” to go to welding school. He would not be able

to start school until late in the year “as in the fall or winter,” and it would take “over a year”

to complete the program.

Ms. Gilley said that the Defendant did not having any money in savings or any assets.

She and her husband had bought him a car, titled in her husband’s name, for transportation

to school and work, but the Defendant had not driven that vehicle in a year. She “hoped” he

would be able to use it in the future.

On cross-examination, she admitted that the reason the Defendant was not driving was

because his license had been revoked due to a January 2010 driving under the influence

conviction. According to Ms. Gilley, the Defendant could currently get his license restored

after he paid his outstanding fines.”

When asked if the Defendant paid her rent, Ms. Gilley responded, “[The Defendant]

has to earn his pay to live with us at his age and for the food he eats and for any money to pay

his debts. He does pay his for it. We didn’t get him out of jail. He served his time. He’s

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on his own.” According to Ms. Gilley, the Defendant performed work “for [them] to give

him money to pay his probation and his fines.”

Ms. Gilley confirmed that the Defendant was once employed at Papa Murphy’s pizza

restaurant for a period of approximately three months in early 2010. He made minimum

wage. According to Ms. Gilley, the Defendant left that job voluntarily when “they cut his

hours back to one hour a day,” and she and her husband were having to drive him there. This

was the only “paycheck-getting type” of job the Defendant had ever maintained.

According to Ms. Gilley, at the time of this aggravated burglary, August 2009, the

Defendant was living at home. The home the Defendant burglarized was in their

neighborhood.

Next to testify was Jada Tice, the Defendant’s probation officer. Ms. Tice relayed that

the Defendant was “doing fine at this time with probation”; he reported and paid as directed

and passed his most recent drug screen. According to Ms. Tice, the Defendant paid $10 per

month in restitution on the other case, $15 per month for his probation fees, and $25 per

month for his court costs.

Ms. Tice testified that she had the Defendant take a psychological

evaluation—initially it was an alcohol and drug assessment, but at some point, “it turned

more into a mental health.” She confirmed that the Defendant did have “some difficulties”

with reading. If she gave him specific instructions, usually in writing, the Defendant was

compliant. According to Ms. Tice, the Defendant, as a part of his probation requirements,

had been seeking employment. Ms. Tice opined the Defendant was “trying.” She was aware

that the Defendant currently had no income.

Ms. Tice was then asked about the $250 restitution award that was ordered in the other

case. According to Ms. Tice, the Defendant was required to pay $10 a month in restitution

on that case, and he began making monthly payments in August 2010. As of the date of the

hearing, the Defendant had paid a total of $80 in restitution.

At the conclusion of the proof, the trial court determined that the total pecuniary loss

to the victims was $9,370. After making additional factual findings, the trial court suspended

the hearing and ordered the parties to the brief the issue and reset the case for a later date.

Following the submission of briefs by the parties, the trial court announced its

decision on June 20, 2011. The trial court ordered restitution in the amount of $3,240,

payable in installments of $90 per month for the remaining thirty-six months of his

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probation.2 An amended judgment was filed on June 30, 2011, reflecting a restitution award

for the total amount of the victims’ pecuniary loss, $9,370. This appeal followed.

ANALYSIS

The Defendant argues that to fulfill the restitution award reflected in the judgment

form, $9,370, payable in installments of $90 a month, would require payment beyond the

expiration of his probationary period, which is contrary to law. The Defendant acknowledges

that payment of the amount announced by the trial court on June 20, 2011, $3,240, would be

satisfied within thirty-six months. The Defendant then submits that the trial court ordered

excessive restitution, arguing that an order of $90 a month “is unreasonable under the

circumstances and quite simply sets up an otherwise compliant probationer to fail.” He

points to the facts that he “only earned enough to meet the fifty dollar a month obligation

imposed by the Board of Probation and Paroles” and that he “is trying to find employment

but is disadvantaged by his felony convictions and learning disabilities.” The Defendant

requests that this court modify the restitution award “at an amount such that the monthly

installments do not exceed ten dollars ($10.00) a month until the restitution of A9CR0737

is satisfied, at which time the installments could increase to twenty dollars ($20.00) a

month.”

When a defendant challenges the validity and amount of restitution, this court

conducts a de novo review of both the amount of restitution ordered and the method by

which it was determined. State v. Johnson, 968 S.W.2d 883, 884 (Tenn. Crim. App. 1997)

(citing Tenn. Code Ann. § 40-35-401(d) (1990); State v. Frank Stewart, No. 01C01-9007-

CC-00161, 1991 WL 8520, at *1 (Tenn. Crim. App. at Nashville, Jan. 31, 1991)). The trial

court is entitled to a presumption of correctness on appeal. Tenn. Code Ann. § 40-35-401(d).

A trial court, in conjunction with a probated sentence, may order a defendant to make

restitution to the victims of the offense. See Tenn. Code Ann. § 40-35-304(a). “The purpose

of restitution is not only to compensate the victim but also to punish and rehabilitate the

guilty.” Johnson, 968 S.W.2d at 885. The statue that governs restitution as a condition of

probation provides:

(b) Whenever the court believes that restitution may be proper or the

victim of the offense or the district attorney general requests, the court shall

2

The trial court apparently operated under the assumption that the Defendant had thirty-six months

remaining on his four-year probationary sentence. However, it is not entirely clear from the record when the

sentence was to expire.

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order the presentence service officer to include in the presentence report

documentation regarding the nature and amount of the victim’s pecuniary loss.

(c) The court shall specify at the time of the sentencing hearing the

amount and time of payment or other restitution to the victim and may permit

payment or performance in installments. The court may not establish a

payment or performance schedule extending beyond the statutory maximum

term of probation supervision that could have been imposed for the offense.

(d) In determining the amount and method of payment or other

restitution, the court shall consider the financial resources and future ability of

the defendant to pay or perform.

(e) For the purposes of this section, “pecuniary loss” means:

(1) All special damages, but not general damages, as

substantiated by evidence in the record or as agreed to by the

defendant; and

(2) Reasonable out-of-pocket expenses incurred by the

victim resulting from the filing of charges or cooperating in the

investigation and prosecution of the offense; provided, that

payment of special prosecutors shall not be considered an

out-of-pocket expense.

Tenn. Code Ann. § 40-35-304(b)-(e).

The restitution ordered must be reasonable and does not have to equal the victim’s

precise pecuniary loss. State v. Smith, 898 S.W.2d 742, 747 (Tenn. Crim. App. 1994). There

is generally no formula for awarding restitution, and the sentencing court need not determine

restitution in accordance with the strict rules of damages applied in civil cases. Johnson, 968

S.W.2d at 886-87. The sentencing court must consider not only the victim’s loss but also the

financial resources and future ability of the defendant to pay. Tenn. Code Ann. §

40-35-304(d); State v. Bottoms, 87 S.W.3d 95, 108 (Tenn. Crim. App. 2001). In ordering

restitution, the trial court shall specify the amount of time for payment and may permit

payment or performance of restitution in installments. Tenn. Code Ann. § 40-35-304(c). The

court may not, however, establish a payment or schedule extending beyond the expiration of

the sentence. Tenn. Code Ann. § 40-35-304(g)(2). If the defendant, victim, or district

attorney petitions the trial court, it may hold a hearing and, if appropriate, waive, adjust, or

modify its order regarding restitution. Tenn. Code Ann. § 40-35-304(f). Further, any unpaid

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portion of the restitution may be converted to a civil judgment. Tenn. Code Ann. § 40-35-

304(h)(1); Bottoms, 87 S.W.3d at 108.

In setting the restitution award in this case, the trial court ruled as follows:

[T]he victim’s total . . . pecuniary loss was nine thousand three hundred and

seventy dollars. Defendant agrees that at least one thousand one hundred

should be a part of his restitution order. That the diagnosis of learning

disabilities and good with his hands, has remodeling skills, and can work any

physical labor jobs. The [D]efendant had maintained a job at Papa Murphy’s

pizza until he voluntarily quit, that he could be a construction worker and

remodeling specialist and could make large sums of money. He is a graduate

that obtained his G.E.D. and that it is somewhat difficult to find a job.

The [c]ourt finds in the case law that has been submitted to me and the

case law I researched that the [c]ourt is to make two different determinations.

One is what is, in fact, the pecuniary loss and that’s the amount that was lost

and due to Ms. Sandra Lewis. I have already stated that, nine thousand three

hundred and seventy dollars. Then the [c]ourt has to find what the [D]efendant

can reasonably pay under the circumstances at this time. What was presented

to me is the [D]efendant voluntarily quit, and he has no job at this time. . . .

I find that this gentleman if he worked at minimum wage, less than

three hours per week, he will have the ability to pay at least ninety dollars per

month on this case. Now that figures out to be thirty-two forty and that’s not

the total amount that he owes you. That is the total that I am ordering he has

to pay based upon what was presented to me.

. . . What was submitted to me is that he is going to get additional

training, should he obtain any type of job—I find that he is voluntarily

unemployed and that is why I am setting the monthly payment that he should

make in this cause of restitution. Ms. Lewis, you have at any time a right to

petition the [c]ourt or otherwise adjust the payment. . . . It doesn’t fully

reimburse you. You have other alternatives to go to court and get that. If he

works more than three hours a week, certainly this [c]ourt will consider a

Petition to Modify.

We conclude that the Defendant’s contention that the restitution award is excessive

is without merit. The trial court made all of the required statutory findings, considering not

only the victims’ loss but the financial resources and future ability of the Defendant to pay.

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The trial court took into account the facts that the Defendant was not currently employed and

suffered from disabilities, but nonetheless, found that he was “voluntarily” unemployed and

could obtain employment. Considering the Defendant’s future ability to pay, the court found

that if the Defendant worked a minimum wage job for three hours per week he could pay the

$90 a month as ordered. The amount of restitution, $3,240, was reasonable.

However, we agree with the Defendant that the judgment form reflects an improper

amount of restitution, $9,370. The Defendant correctly states that payment of this amount

would extend beyond the expiration of his probationary sentence. While this amount was

found to be the total pecuniary loss to the victims, it was not the amount of the restitution

award. The case is remanded for correction of the judgment form to reflect restitution in the

amount of $3,240, payable in monthly installments of $90.

CONCLUSION

In consideration of the foregoing and the record as a whole, the restitution award of

$3,240 is affirmed. The case is remanded for correction of the judgment form in accordance

with this opinion.

___________________________________

D. KELLY THOMAS, JR., JUDGE

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