        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs October 15, 2013

            STATE OF TENNESSEE V. ANGELO JOHN AMALIO,
                   ALIAS ANGELO GUSTAVO AMALIO

                 Appeal from the Criminal Court of Hamilton County
                       No. 285937       Don W. Poole, Judge


               No. E2013-00526-CCA-R3-CD - Filed November 20, 2013


Angelo John Amalio, alias Angelo Gustavo Amalio (“the Defendant”) pleaded guilty to two
counts of aggravated assault and one count of public intoxication. The plea agreement
provided that the Defendant would serve an effective sentence of five years to be suspended
to supervised probation following service of eleven months, twenty-nine days’ incarceration,
with restitution to be determined by the trial court. After the restitution hearing, the trial
court ordered the Defendant to pay $3,600 in restitution to the victim. On appeal, the
Defendant challenges the amount of restitution imposed by the trial court and claims that the
trial court failed to consider the Defendant’s ability to pay. Upon a thorough review of the
record, we affirm the trial court’s judgments.

                   Tenn. R. App. P. 3 Appeal as of Right; Judgments
                            of the Criminal Court Affirmed

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which D. K ELLY T HOMAS, J R.,
and C AMILLE R. M CM ULLEN, JJ., joined.

Hilary Hodgkins (on appeal) and Andrew D. Watts (at plea and restitution hearings),
Chattanooga, Tennessee, for the appellant, Angelo John Amalio.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; William H. Cox, III, District Attorney General; and Jason Demastus, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                                OPINION

                                Factual and Procedural Background

       On January 24, 2013, the Defendant pleaded guilty to two counts of aggravated assault
and one count of public intoxication. These charges arose from an altercation on August 23,
2012, between the Defendant in one vehicle and the victim, Myron Walker, in another
vehicle.1 Pursuant to the Defendant’s plea agreement,2 the trial court sentenced the
Defendant to five years to be suspended on supervised probation after service of eleven
months, twenty-nine days’ incarceration, with restitution to be determined by the trial court.
On February 18, 2013, the trial court held a hearing to determine the amount of restitution
owed by the Defendant.

       At the restitution hearing, Myron Walker testified that, as a result of the incident with
the Defendant, his vehicle sustained damages. He identified two documents from Hi Tech
Transmission, which indicated repairs performed on the vehicle in the amounts of $1,283.52
and $240.34. He also identified a document from Mid-Century Insurance Company
estimating Walker’s out-of-pocket expense toward additional repairs in the amount of
approximately $200. According to Walker, the damages amount estimated by the insurance
company did not account for the damage to the rims of his vehicle. By his estimation,
because his rims were customized, the total cost of replacing the rims would be
approximately $2,000 to $2,500. He also replaced the front two tires, which cost $140 each.

       Additionally, as a result of coming to court, Walker had lost four days of work. He
stated that he earned $11 per hour and worked eight hours per day. Walker also spent
approximately $40 in pain medication from this incident. He agreed that his total restitution
request was approximately $4,895.57.

       On cross-examination, Walked explained what happened to him and his vehicle as
follows: “My car was more than rear-ended, my car was bumped from side to side and every
way. [The Defendant] chased me, he pursued me. So my car was hit from the left, on the
passenger side, the driver side, as [the Defendant] pursued me and chased me.” When
Walker was asked how his vehicle sustained transmission damage, he answered, “The
transmission damage was when [the Defendant] got behind me and mashed his gas at full
strength, while I was on brakes trying to stop at a light while he was trying to push me into
ongoing traffic to kill me.” Walker explained that his rims were damaged because the

        1
            This type of incident commonly is referred to as “road rage.”
        2
          The guilty plea transcript is not included in the record on appeal. We glean all information
regarding the Defendant’s guilty plea from his guilty plea petition and the trial court’s subsequent judgments.

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Defendant “bumped [his vehicle] several times and knocked [it] up on sidewalks several
times.”

       On redirect examination, Walker stated that he previously had no issues with his
vehicle until this incident. The transmission issues began immediately after his encounter
with the Defendant.

       The Defendant testified that, as he was turning right from one street to another,

       [t]here was a white Chevy Caprice turning left, coming towards me but making
       a left-hand turn. I felt I had the right of way, the light was green, there was no
       yield to me. So when we made the turn, we almost hit each other, it [sic]
       basically what happened. I turned into the near lane, he almost, you know, he
       turned and didn’t leave me the right of way and he kind of went a little bit into
       the center lane and I had just picked up the car from the dealership about three
       hours prior to this, and so there was some horn blowing, some obscene hand
       gestures. I did use some racial language and it was kind of back and forth
       between his passenger and one of my passengers.

       ....

       They kind of got in front of me and I thought that was it and then I heard
       something hit my car. I heard it, I didn’t see where it was, but . . . my friend
       . . . pointed . . . out the windshield where his passenger had thrown something
       out the window and hit the windshield of my car and spider-webbed the
       windshield.

              He got in front of me at some point, coming up to another light, and the
       light was red. And when I got up to him, I did, I hit him, you know, I bumped
       him to let him know I was angry, you know.

        The Defendant further testified that he might have hit Walker one other time during
this incident, but, in both instances, he hit the rear of Walker’s vehicle. He denied, therefore,
hitting or damaging the side, rims, or tires of Walker’s vehicle.

        The trial court questioned the Defendant regarding his financial status, and the
Defendant testified that he earned $17 per hour as an electrician in Chattanooga. He agreed
that he would resume working as an electrician after the completion of his incarceration. On
redirect examination, he stated that he currently owed approximately $40,000 in back child
support in Michigan.


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At the conclusion of the restitution hearing, the trial court stated,

       [S]ometimes it’s hard to understand this, that when restitution is set as part of
       a plea or punishment, it has to be strictly by the proprietary [sic] damage that
       Mr. Walker has served, has encountered, but it also has to be based, somewhat,
       on the ability of [the Defendant] to pay that damage, and sometimes that
       results in the victim looking like he walks away thinking he is the victim [sic],
       and I don’t want that to be the case. [The Defendant] . . . should pay a
       reasonable and realistic amount to Mr. Walker for the damage.

The trial court considered the $4,895.57 in alleged damages to Walker’s vehicle and, after
considering the age of his vehicle, set the restitution at $3,600, to be paid in increments of
$150 per month. The court ordered the Defendant to commence paying restitution beginning
thirty days after release from custody. The Defendant timely appealed the trial court’s order
of restitution.

                                           Analysis

        The Defendant argues on appeal that his restitution is improper because the trial court
failed to consider the Defendant’s ability to pay and erred in determining the amount of
restitution. A trial court “may direct a defendant to make restitution to the victim of the
offense as a condition of probation.” Tenn. Code Ann. § 40-35-304(a) (2010). Restitution
is imposed “not only to compensate the victim but also to punish and rehabilitate the guilty.”
State v. Johnson, 968 S.W.2d 883, 885 (Tenn. Crim. App. 1997) (citation omitted).

      In determining restitution, a trial court must determine the victim’s pecuniary loss,
which is defined by statute as:

       (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(e)(1)-(3). Additionally, “the trial court must consider what
the defendant can reasonably pay given the [defendant’s] means and future ability to pay.”
Johnson, 968 S.W.2d at 886 (citing Tenn. Code Ann. §§ 40-35-303(d)(10), -304(d); State v.
Smith, 898 S.W.2d 742 (Tenn. Crim. App. 1994)).


                                              -4-
        We discern no error by the trial court in ordering the Defendant, upon thirty days after
completion of his incarceration, to pay $150 per month for a total of $3,600 in restitution.
The record reflects that the State presented evidence of monetary loss to the victim in the
amount of $4,395.91 to $4,895.91.3 This included documented receipts of repairs to the
victim’s vehicle in the amounts of $1,283.52 and $240.34 and an estimate of Walker’s out-
of-pocket cost of $200.00 for further repairs. Additionally, the victim, Myron Walker,
testified that the total cost of replacing the rims would be $2,000 to $2,500. He also replaced
the front two tires, which cost $140 each. He lost wages from four days of work, where he
earned $11 per hour and worked eight hours per day. Walker also paid $40 for pain
medication.

       Although Walker did not provide documentation to substantiate his estimation toward
replacement of his vehicle’s rims, tires, and lost wages, this Court has held that a victim’s
testimony in this regard can be sufficient to establish a restitution amount. See Johnson, 968
S.W.2d at 886. The trial court noted that it was reducing the total restitution amount based
on the age of Walker’s vehicle. Thus, we hold that the trial court did not err in determining
the amount of restitution owed by the Defendant.

       Regarding the trial court’s consideration of the Defendant’s ability to pay, the trial
court asked the Defendant questions about his employment and wages, noting later that it
must consider the Defendant’s ability to pay the restitution in determining the amount. The
Defendant testified that he earned $17 per hour as an electrician in Chattanooga. He agreed
that he would resume working as an electrician after the completion of his incarceration.

        Although the Defendant testified that he owed $40,000 in back child support in
Michigan, such proof does not completely eradicate his ability to pay. The Defendant’s
testimony suggested that Michigan had not yet imposed a payment plan as to an amount the
Defendant was to pay monthly. Therefore, as of the time that the trial court ordered
restitution, it could not have been calculated as part of the Defendant’s monthly obligations.
If Michigan, at a later date, imposes a monthly obligation toward payment of this back child
support, the proper mechanism for the Defendant to challenge his restitution obligation
would be under Tennessee Code Annotated section 40-35-304(f) (“A defendant . . . may
petition the sentencing court to adjust or otherwise waive payment or performance of any
ordered restitution or any unpaid or unperformed portion of the restitution. . . . If the court
finds that the circumstances upon which it based the imposition or amount and method of
payment or other restitution ordered no longer exist or that it otherwise would be unjust to
require payment or other restitution as imposed, the court may adjust or waive payment of


        3
        We note that the total amount of estimated damages calculated by this Court differs slightly from
the amount alleged by the State, which was $4,895.57.

                                                  -5-
the unpaid portion of the restitution or other restitution to modify the time or method of
making restitution.”).

       We conclude that the trial court did not err in ordering the Defendant to pay $3,600
in restitution, to be paid in increments of $150 per month beginning thirty days after
completion of his time in incarceration. Accordingly, the Defendant is entitled to no relief.

                                          Conclusion

        The trial court did not err in its order of restitution. Accordingly, the judgments of the
trial court are affirmed.


                                             _________________________________
                                             JEFFREY S. BIVINS, JUDGE




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