        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 11, 2012

               STATE OF TENNESSEE v. NGOC DIEN NGUYEN

                  Appeal from the Criminal Court for Sumner County
                     No. CR399-2011      Dee David Gay, Judge


                No. M2012-00549-CCA-R3-CD - Filed October 26, 2012


The defendant, Ngoc Dien Nguyen, pled guilty to theft over $1,000 and attempted theft over
$1,000 and was sentenced as a Range I offender to an effective term of six years in the
Department of Correction. The court ordered that the six-year sentence be served
consecutively to a Robertson County sentence and a California sentence and that the
defendant pay $9,462 in restitution to the victim. On appeal, the defendant challenges the
award of restitution. After review, we affirm the defendant’s convictions but remand for a
new hearing as to restitution.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J ERRY L. S MITH and J AMES
C URWOOD W ITT, J R., JJ., joined.

David A. Doyle, District Public Defender (on appeal); and Terry Frizzell, Hendersonville,
Tennessee (at trial), for the appellant, Ngoc Dien Nguyen.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;
Lawrence R. Whitley, District Attorney General; and Tara Wyllie and Thomas B. Dean,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

       At the November 30, 2011 guilty plea hearing, the State recited the facts it would have
presented had the case gone to trial:

       [T]he State’s proof would show that on the Attempted Theft over $1,000 there
       was a check passed at Sumner Bank & Trust of Hendersonville for the amount
       of $4,722 by the defendant, Ngoc Nguyen. That check was written, . . ., on or
       about . . . February 14, 2011. He did not have the owner’s consent and he did
       deprive them of that amount of money – or attempted to on that case.

                On Count Two, . . ., the State’s proof would show that on February 15,
       2011, the defendant cashed a countercheck in the amount of $4,700 at the
       American Security Bank & Trust on Springhouse Court in Hendersonville,
       Tennessee. That he did that and took the value of $4,700 without the bank’s
       . . . effective consent and to deprive them of that amount[.]

        At the February 6, 2012 sentencing hearing, Christy Caudill, the chief information
officer for American Security Bank in Hendersonville, testified that the defendant came into
the bank on February 14, 2011, and deposited Check No. 1037 in the amount of $4,722
drawn from his account at Sumner Bank & Trust. That same day, he wrote Check No. 1194
in the amount of $4,722 from his account at American Security Bank and deposited it at
another bank. The next day, the defendant returned to American Security Bank and cashed
an over-the-counter check in the amount of $4,700, which the bank paid because there
appeared to be sufficient funds in his account. However, Check No. 1037 was subsequently
returned to American Security Bank for insufficient funds. The defendant also wrote two
additional checks, each in the amount of $4,722, from his account at American Security
Bank. Caudill said that Check No. 1194 “was paid, but it was not a good check” and that the
other two checks were returned for insufficient funds to the bank of first deposit. She said
that American Security Bank’s loss totaled $9,462. Caudill said that the defendant’s activity
was known as “check-kiting,” meaning that he used “the float time between the time a check
is deposited and it comes back as insufficient to the bank. He[] us[ed] that little bit of time
in between to try to withdraw those funds.”

       Connie Newby, an employee of Sumner Bank & Trust, testified that she had worked
in banking for forty years and was familiar with check-kiting. She said the defendant opened
an account at Sumner Bank & Trust on February 24, 2010, but did not use it again until
February 14, 2011, when he deposited a check in the amount of $4,722 drawn on American
Security Bank. Prior to that deposit, the defendant’s account had had a balance of $125 for
“a long period of time.” The check the defendant wrote to American Security Bank on
February 14, 2011, as well as another check he wrote to Old Hickory Credit Union, were
returned, the first one for insufficient funds and the second one as “closed.” Newby
explained that there was one check coming in and two checks going out from the defendant’s
account and that between the three banks, “there was a float of $14,166,” meaning that the
checks had been deposited but had not had time to clear the bank.




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       Kimberly Gulden of the Tennessee Board of Probation and Parole testified that she
prepared the defendant’s presentence report, which was made an exhibit. She said the
defendant had two felony convictions from Robertson County and was on probation when
he committed the present offenses. Her investigation revealed that the defendant had an
outstanding warrant in Washington for unlawful issuance of bank checks and second degree
theft. He also had a parole violation in California stemming from his convictions for grand
theft over $400 and a fraudulent claim for loss. The defendant reported that his wife lived
in California and that he visited there often. The defendant further reported that he had a
gambling addiction and alcohol problem and that he spent all of the $4,700 in one day in
Tunica, Mississippi.

        According to Gulden’s presentence report, the defendant disputed the amount of
restitution he owed, which was to be resolved at the sentencing hearing. The United States
Department of Immigration had placed a hold on the defendant because he was not a legal
citizen and was in this country with a “green card.”

        The forty-year-old defendant testified that he was born in Vietnam and came to the
United States when he was thirteen years old and lived with his uncle in California until he
was eighteen. He began gambling in high school and, in college, started going to casinos
three to four times a week. He gambled with the money he earned from his electronic
manufacturing job, as well as the financial aid money he had received to attend college. He
moved to Washington state after attending two years of college in California and graduated
from the University of Washington with a degree in engineering. He worked at Seaman’s
Medical System in Washington from 1994 to 1996 when he was laid off “because of [his]
gambling.” He then worked for various temporary agencies but continued to gamble. In
1998, he sponsored his parents to come from Vietnam to America and moved back to
California. At the time, he was living “under US Green Card Legal Alien” but never applied
for citizenship because he “caught the DUI [i]n ‘93 and then from that day, . . . [he had] to
go and expunge that . . . . I feel like I don’t really need it until ‘98 I caught that felony.” He
admitted that he had been arrested for a felony bad check charge in California in 1998.

        The defendant said he married in 1998 or 1999 and that his gambling caused his
separation from his wife and children, as well as problems with his employment. He
admitted that he was addicted to gambling and that it controlled his life, but he had never
sought treatment for it. In 2009, he moved from California to Tennessee to work in his
cousin’s nail salon in Nashville. He also worked as a handyman for Lien Vo at Platinum
Realty. While living in Tennessee, he gambled online and frequented casinos in Mississippi,
Illinois, and Indiana.

      Asked if he had the money to pay the restitution, the defendant said he had talked to
his mother and his family did not “have the money that $9,000 to pay the restitution. . . . I

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asked [the trial judge] last November 30 I come up with that $5,000 . . . because that’s what
he put me for the [s]entencing [h]earing to determine how much money I owe.” He said that
the restitution would have to be paid by his family because he had no money. The defendant
said that the “only amount [he] would admit [was] $4,700 instead of $9,444,” although his
bank statement showed a negative balance of $9,444. According to the defendant, the only
money he took was the $4,700 from the countercheck he cashed at American Security Bank.

       The defendant admitted that he had an extensive criminal history and that he was on
parole from California for his convictions for DUI, third offense, felony evading an officer,
and felony forged check when he committed the present offenses. He also admitted that he
had been convicted of two counts of passing a worthless check over $1,000 in Robertson
County, Tennessee, and sentenced to concurrent terms of two years which began on April
30, 2010, but denied that he was on probation when he committed the present offenses. He
said that his parents paid the restitution to the bank in the Robertson County case and that
his family had paid about $14,000 over the years as a result of his crimes.

       At the conclusion of the hearing, the trial court applied two enhancement factors, the
defendant had a previous history of criminal convictions or criminal behavior and the
defendant was on parole in California and probation in Robertson County when he
committed the present offenses, see Tenn. Code Ann. § 40-35-114(1), (13), and sentenced
the defendant to four years for the theft conviction and two years for the attempted theft
conviction. Finding that the defendant had an extensive criminal history and that he was on
parole and probation when he committed the present offenses, the court ordered the sentences
to be served consecutively to each other and to his sentences in California and Robertson
County. Additionally, the court recommended that the defendant serve his entire sentence
without parole because of his extensive criminal history and the court’s finding that he was
a danger to the public.

                                        ANALYSIS

         The defendant argues that, in ordering him to pay $9,462 in restitution to American
Security Bank & Trust, the trial court did not consider his financial resources and future
ability to pay, did not specify the amount of time and payment, and did not state that he
would be required to pay restitution although the judgments include that requirement. He
asks this court to amend the judgments by omitting the reference to restitution and by
deleting the trial court’s recommendation to the Board of Probation and Parole. The State
responds that the defendant has “misstate[d] the facts” and that the trial court determined the
amount of restitution at the sentencing hearing. In his reply brief, the defendant argues that
it is the State who has misstated the facts because “the very words of the trial court fail to
include any directive that the [defendant] make restitution.”



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        Tennessee Code Annotated section 40-20-116(a) provides that a trial court order
restitution “[w]henever a felon is convicted of stealing or feloniously taking or receiving
property, or defrauding another of property.” In State v. Bottoms, 87 S.W.3d 95, 108 (Tenn.
Crim. App. 2001), this court explained the considerations of the trial court in ordering
payment of restitution:

               In determining the amount and method of payment of restitution, the
       trial court must consider “the financial resources and future ability of the
       defendant to pay or perform.” Tenn. Code Ann. § 40-35-304(d); see also
       State v. Johnson, 968 S.W.2d 883, 886 (Tenn. Crim. App. 1997) (“[T]he trial
       court, in determining restitution, must also consider what the appellant can
       reasonably pay. An order of restitution which obviously cannot be fulfilled
       serves no purpose for the appellant or the victim.”); State v. Smith, 898
       S.W.2d 742, 747 (Tenn. Crim. App. 1994) (“The trial court must further set an
       amount of restitution that the appellant can reasonably pay within the time that
       he will be within the jurisdiction of the trial court.”).

        At the guilty plea hearing, the trial court informed the defendant that the amount of
restitution he owed would be determined at the sentencing hearing, and the defendant said
he understood. At the sentencing hearing, the following exchange occurred between the trial
court, the prosecutor, and Christy Caudill of American Security Bank & Trust:

       THE COURT: Is the restitution figure $9,462, wasn’t that the testimony of
       Ms. Caudill?

       [THE STATE]: Judge, I think that’s right. I didn’t have the exact figure
       written down.

       THE COURT: I think that’s what she testified to.

       MS. CAUDILL: Yes, that’s correct.

       We have reviewed the record on appeal, and it is clear that, in sentencing the
defendant, the trial court considered the purposes and principles of our sentencing act in
setting the defendant’s sentence. Accordingly, we review the sentence using an abuse of
discretion standard.

       The defendant argues that, in setting the amount of restitution for him to pay to the
victim, the court did not consider his financial resources or ability to pay. At the sentencing
hearing, the defendant testified that he had been in jail for ten months, unable to post a
$25,000 bond. According to his presentence report, he was on probation in Robertson

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County and on parole in California, and “holds” had been placed on him by the State of
California and the United States Department of Immigration, presumably because he was not
a citizen of the United States and had numerous felony arrests and convictions. Thus, given
the defendant’s lack of job skills and funds, felony convictions, continuing incarceration
following his completion of the Sumner County convictions, and prospect of being deported
back to Vietnam upon finally completing his various terms of incarceration, it would appear
very unlikely that he will be able to pay any restitution. However, our procedure requires,
as we have set out, that a trial court, in setting restitution, must consider the defendant’s
financial resources and ability to pay or perform within the time that he will be within the
court’s jurisdiction. Since it does not appear that these matters were fully considered by the
trial court, we remand the matter for these determinations to be made.

       The defendant also points out that because his sentence was to be served in the
Department of Correction, the trial court no longer had jurisdiction over the manner of
service of his sentence, see Tenn. Code Ann. § 40-35-212(c), and therefore could not make
a recommendation to the Board of Probation and Parole.

        The sequence in this case, as we have set out, is that the defendant entered pleas of
guilty on November 30, 2011, and the court, at that time, advised him that a determination
as to payment of restitution and, if so, in what amount, was to be reserved until the
sentencing hearing. That hearing was held on February 6, 2012, when the defendant was
ordered to pay restitution in the amount of $9,462. He argues on appeal, as we understand,
that since his pleas of guilty to felony convictions were entered on November 30, 2011, at
which time the court said that the issue of restitution would be addressed at the sentencing
hearing, the court could impose the making of restitution and the conditions only at the
submission hearing but not at the sentencing hearing. We agree with the defendant that
Tennessee Code Annotated section 40-35-212 provides that a trial court loses jurisdiction
once a defendant has been sent to the state penitentiary. However, we disagree with his view
of the effect of this statute on a court’s imposing restitution and note that he cites no
authorities in this regard. Accordingly, we conclude that this claim is without merit.

                                      CONCLUSION

       Based on the foregoing authorities and reasoning, the defendant’s convictions are
affirmed, but the matter is remanded for a new hearing as to restitution.



                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE



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