         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE            FILED
                           APRIL SESSION, 1999          June 2, 1999

                                                    Cecil W. Crowson
STATE OF TENNESSEE,           )                   Appellate Court Clerk
                                   C.C.A. NO. 01C01-9811-CC-00437
                              )
      Appellee,               )
                              )
                              )    MARION COUNTY
VS.                           )
                              )    HON. J. CURTIS SMITH,
SHERRY JENNO,                 )    JUDGE
                              )
      Appe llant.             )    (Sentencing)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CIRCUIT COURT OF MARION COUNTY


FOR THE APPELLANT:                 FOR THE APPELLEE:

PHILIP A. CONDRA                   JOHN KNOX WALKUP
District Public Defender           Attorney General and Reporter
P.O. Box 220
200 Betsy P ack Drive              CLINTON J. MORGAN
Jasper, TN 37347                   Assistant Attorney General
                                   425 Fifth Avenu e North
                                   Nashville, TN 37243

                                   J. MICHAEL TAYLOR
                                   District Attorney General
                                   First American Bank Building
                                   Suite 300
                                   Dayton, TN 37321



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                    OPINION

          The Defendant, Sherry Jenno, appeals from the trial court’s determination

of the manner of service of her sentence and other sentencing conditions. On

April 8, 1998, Defendant pleaded nolo contendere to arson, a class C felony.

The agreed sentence was four years, with the manner of service of the sentence

left to the disc retion of the trial judge. The trial judge ordered one year to be

served in the county jail, with the balance to be served on probation, and also

awarded restitution. T he De fendan t appea ls from the senten cing orde r. We

affirm.



          The events lea ding to Defendant’s conviction appear to have begun when

the victims, Mr. and Mrs. David Whited, purchased a parcel of land from

Defe ndan t’s father. According to the re cord, D efend ant’s family re fused to perm it

a survey of the parcel, which adjoined their property, prior to the sale . The two

families feuded over the property line after the sale, and Defendant warned the

victims weeks prior to the arson that her father wished to hire someo ne to burn

the home the victims had built on the lot. On October 6, 1996, the victims’ home

burned , and inve stigators d etermin ed that the fire was ca used inte ntionally.



          At the plea hearing, the assistant district attorney general attested that, had

this case been tried, the State wou ld have prese nted e videnc e that D efend ant’s

daughter saw Defendant give Sam McMurry $500 to burn the victims’ residence.

Furthermore, McM urry ha d alrea dy pleaded guilty on charg es aris ing from this

incident, and he had agreed to testify for the State that Defendant gave him $500



                                            -2-
to burn the victims’ residence and that he did com mit that ars on. Afte r this

information was prese nted, Defen dant pleade d nolo conten dere to arson for the

recommended sentence of four years, with the manner of service left to the

discretion of the trial cou rt.



       Following a sentencing hearing, the trial judge sentenced Defendant to four

years, with the first year to be served in confin ement in the county jail and the

remaining three years to be served on probation. Furthermore, the court ordered

that Defendant’s case would be reviewed after four months in confinement; and

upon an app ropriate find ing, she c ould be probate d at that tim e. Finally, the

judge ordered Defendant to pay $50,000 restitution to the victims, but he declined

to order any schedule of periodic payments.



       Specifically, Defendant argues that the sentence ordered by the trial court,

involving a maximum of one year in co nfinem ent, doe s not com port with

sentencing purposes and considerations.           In addition, she contends that

restitution was im pose d without considera tion of th e criteria conta ined in

Tennessee Code Anno tated § 4 0-35- 304.             W e affirm the trial c ourt’s

determination of the manner of service of Defendant’s sentence and conditions

imposed thereon.



       When an accused challenges the length, range, o r mann er of service of a

sentence, this Court has a duty to conduct a de novo review of the sentence with

a presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-35 -401( d). Th is pres ump tion is “conditioned up on the affirmative

showing in the record that the trial court considered the sentencing principles and

                                         -3-
all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 19 91).



      When conducting a de novo review of a sentence, this Court must

consider: (a) the evidence, if any, received at the trial and sentencing hearing; (b)

the presentence report; (c) the princip les of sen tencing a nd argu ments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

made by the defendant regarding sentencing; and (g) the potential or lack of

potential for rehabilitation or treatm ent. State v. S mith, 735 S.W.2d 859, 863

(Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.



      If our review reflects that the trial court followed the statutory sentencing

procedure, that the court imposed a lawful sentence after having given due

consideration and proper weight to the factors and principles set out under the

sentencing law, and that the trial court’s findings of fact are adequately supported

by the record, then we may not modify the sentence even if we would have

preferred a different re sult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991 ).



      Based upon our revie w of the record, w e are satisfied that the trial cou rt

prope rly applied the sentencing principles and considerations. After the trial

judge heard all evidence presented at the sentencing hearing, he stated,

             I believe the first determination for me is whether Mrs. Jenno
      is entitled to the statutory presump tion for alternative sentencing.
      The statutes that apply [are] TCA 40-35-1 02 (5) an d (6) in ord er to
      be eligible for the statutory presumption of alternative sentencing
      and when I say alternative sentencing that’s something other than

                                        -4-
       a sentence to the Department of Corrections. Three requirem ents
       must be met. First, the defendant must be convicted of a Class C,
       D, or E felony, th is is a C felon y.
               Second, the defendant must be a standard offender, and she
       is, and thirdly, the defendant must not fall within the parameters of
       40-35-102 (5), which has reference to certain felonies , and th is is
       not one of those e nume rated felon ies.
               So generally speaking in order to benefit from the
       presumption a defendant cannot have a criminal history evincing
       either a clear disregard for the laws and morals of society, she has
       no criminal history. Or a failure of past efforts at rehabilitation. Of
       course , that does not app ly.
               So here we have a defendant who is a Class C or has plead
       [sic] to a Class C felony so she’s entitled to the—under the law the
       statutory p resum ption for alte rnative se ntencing .

       The trial court continued, stating,

              The presumption may be rebutted by evidence to the contrary,
       which is [sic] the words of art from TCA 40-35-1 02 (6). Evid ence to
       the contrary may include the following sentencing considerations
       which are codified in 40-35-103. Sentencing involves Number (1)
       sentences involving confinement should be based on the following
       considerations: Number (1) confinement necessary to protect
       society by restraining a defendant who has a long history of criminal
       condu ct[.] Secondly, confinement is necessa ry to avoid depreciating
       the seriousness of the offense or confinement is particularly suited
       to provide an effective deterrence to othe rs likely to com mit serious
       offenses; or thirdly, measures less restrictive than confinem ent have
       freque ntly or recently been applied unsuc cessfully to the defen dant.
              The Court may also apply the mitigating and enhancing
       factors set forth in 40-35-113 and 114 a s they are relevant to 40-35-
       103 considerations. Finally, the potential or lack of potential for
       rehabilitation of the defendant should be considered in determining
       whether that de fenda nt sho uld be granted an alternative sentence.
              There is no proof in the record about deterrence. That is
       whether sentencing to confinement would result in deterrence, so I
       can’t consider that one.1
              ...
              Howeve r, 40-35-103 (1) (B) co nfinem ent ne cess ary to a void
       depreciating the seriousness of the offense. In order to deny an
       alternative sentence based on the seriou sness o f the offens e, . . .


       1
           Upon the State’s urging that the trial court could consider whether others likely to
commit a similar offense would be deterred by the confinement of Defendant, the trial court
responded that State v. Zeolia, 928 S.W.2d 457 (Tenn. Crim. App. 1996), mandates that before
a trial court may deny alternative sentencing on the basis of deterrence, evidence in the record
must support a need within the jurisdiction to deter individuals other than the defendant from
committing similar crimes. The trial judge concluded that because he found no evidence in the
record to support the need for deterrence, he could not properly consider it as a factor to deny
alternative sentencing.

                                              -5-
      the circumstances of the offense as committed must be espe cially
      violent, horrifying, shocking, reprehensible, offensive or otherwise
      of an excessive or exaggerated degree that the nature of the offense
      must outwe igh all factors favoring a sentence other than
      confinem ent.
              Then the [Zeolia ] Court go es on to s ay the extent of the
      victim’s financial losses can be considered, it was considered in
      Zeolia. The Court also says that in this aspect a Court is not
      required to ignore that co nduc t as it relates to the evaluation of other
      senten cing facto rs.
              I think the proof clearly shows here that the victims have
      suffered substantial financial losses, even assumin g that they have
      some success in rec overing an ything by virtue of a law suit. The
      proof clearly shows tha t they have suffere d and will suffer
      substantial financial losses a s a result o f the fire whic h goes to what
      I just mentioned, that is depreciating the seriousness of the offense.
              Given that analysis of the law a nd the facts that I have I think
      the factor as it relates to depreciating the seriousness of the offense
      and the financial losses the victims have suffered is one—is a factor
      that bea rs consid erable w eight.



      As the trial court noted, Defendant was entitled to a presumption of some

form of alternative sentence.       The trial court ordered a form of alternative

sentencing—split confinement.         Because he found that a sentence of total

probation would depreciate the seriousness of the offense, the judge ordered that

four to twe lve mon ths be se rved in co nfinem ent.



      W e are convinced both that the trial court’s determination deserves the

presumption of correctness by this Court and that the evidence contained in the

record does not overcome that presumption. This issue lacks merit, and the

manner of service of Defendant’s sentence is affirmed.



      Next, we review the trial cou rt’s order of $50,000 restitution.                 When

ordering Defendant to pay $50,000 restitution, the trial court stated,

             In setting the amount of restitution it’s a difficu lt situatio n. It’s
      a situation where we have a woman[] that committed or been [sic]

                                           -6-
      part and parcel of committing just a grievous crim e, it’s hard to think
      of much in the arson line that’s worse than being part and parcel of
      burning som eone ’s home. It’s really quite a despicable act for Mrs.
      Jenn o’s standp oint. I—if the law allowed incarceration in the
      Department of Corrections tha t’s where I would send her, but I think
      under the law and under the facts I’ve sentence d her to what is
      approp riate under the 1989 law.
             ...
             I’m making a spec ific finding that the dam ages were more
      than [$50,000]. I’m setting the restitution at that amount based on
      the facts o f this case.
             ...
             I think [De fendan t] posse sses the presen t ability to pay some
      restitution. I think— there’s been no tes timon y that sh e’s ph ysically
      unsound. Apparently she’s chosen not to work for whatever
      reasons. She’s apparently skilled enough to work in a gas station.
      She could remain permanently employed in a gas station, so I think
      she has the ability to pay the restitution that I’ve ordered, assuming
      that she w ill work.



      The judgm ent en tered in this case sets restitution in the amount of $50,000

but does not specifically state that restitution is being set as a condition for

probation. See Tenn. Code Ann. § 40-35-304(a).             If restitution is set as a

condition of probation, the statute requires the trial court to specify at the time of

the sentencing hearing the “amount and time of payment” of restitution. Tenn.

Code Ann. § 40-3 5-304(c). The court may permit payment in installments but

may not establish a payment schedule extending beyond the statutory maximum

term of prob ation th at cou ld have been imposed for the offen se.           Id.   In

determining the amount and method of payment, the court is required to consider

the financial resources and future ability of the defenda nt to pay. Tenn. Code

Ann. § 40-3 5-304(d).



      Prior to July 1, 1996, our law allowed restitution to be ordered only as a

condition for probation, and thus, restitution was not authorized in conjunction

with a senten ce of total inc arceratio n. See State v. Davis , 940 S.W.2d 558, 561-

                                         -7-
62 (Tenn. 1997). Effective July 1, 1996, the legislature authorized ordering

restitution to the vic tim or vic tims e ither alo ne or in conju nction with any other

sentence authorized by law. Tenn. Code Ann. § 40-35-104(c)(2). In such a

case, the legislature has mandated that the procedure for a defendant sentenced

to pay restitution shall be the same as when the restitution is ordered as a

condition of proba tion.      Ten n. Cod e Ann. § 40-35-304 (g).           How ever, a

defend ant’s responsibility to pay restitution sh all not extend beyo nd the exp iration

of the sentenc e impose d by the court. Te nn. Code Ann. § 40-3 5-304(g)(2).



       In the case at bar, the Court did no t estab lish a pa ymen t sche dule in

conjunction with Defendant’s term of probation. It is clear from this record that

Defendant was not expected to be able to pay $50,000 in lump sum. At the

sentencing hearing, the assistant district attorney, the public defender and the

trial judge discussed at leng th De fenda nt’s financ ial situa tion an d, esp ecially in

view of her pending incarceration for at least four months, her inability to make

any regular pa ymen ts of res titution u ntil such time a s she beca me e mplo yed.

Because Defendant was not ordered to make regularly scheduled payments, it

is doubtful that her probation could be violated for failure to comply with the order

of restitution.



       From our review of the rec ord we con clude that the evidence presented

suppo rts the trial judge’s finding that the pecuniary loss of the victim exceeded

$50,000. In setting the restitution at $50,000, the trial judge stated that he was

doing so in consideration of the financial resources and future ability of

Defendant to pay. See Tenn. Code Ann. § 40-35-304(d). Whether Defendant

will have the actual ab ility to pay $50 ,000 during her four -year s enten ce is

                                           -8-
doub tful, but remains to be seen. W e are unable to conclude that the trial judge

erred or abused his discretion when he set restitution in this case at $50,000.

This issu e is withou t merit.



       W e conclude that the trial co urt prope rly senten ced De fendan t to a term

of four years split confinement, with up to one year to be se rved in the co unty jail

and the remainder to be served on probation. We further find that the trial court

considered all relevant factors and appropriately ordered Defendant to pay

$50,000 restitution to the victims. The judgment of the trial court is affirmed.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JAMES CURWOOD WITT, JR., JUDGE




                                         -9-
