                                                                                       03/24/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 8, 2016

            STATE OF TENNESSEE v. JAMES ALLEN BALLEW

                   Appeal from the Criminal Court for White County
                   No. 2012-CR-5363    David A. Patterson, Judge


                            No. M2016-00051-CCA-R3-CD


In this second appeal of the amount of restitution ordered in a Class E felony theft case,
the defendant, James Allen Ballew, appeals the $36,473.00 at the rate of $50 per month
that the trial court ordered he pay to the victim lumber company, arguing that the amount
is unreasonable given the evidence of the victim’s losses presented at the second
restitution hearing, the two-year length of his sentence, and his financial resources and
future ability to pay. The State concedes that the trial court erred by imposing an amount
of restitution that the defendant could not reasonably be expected to pay and by ordering
a payment schedule that exceeds the length of the sentence. Following our review, we
reverse the judgment of the trial court with respect to restitution and remand for further
proceedings consistent with this opinion.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL,
P.J., and ROBERT W. WEDEMEYER, J., joined.

Billy K. Tollison, Sparta, Tennessee, for the appellant, James Allen Ballew.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Bryant C. Dunaway, District Attorney General; and Philip Hatch,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                         FACTS

      The defendant was indicted by the White County Grand Jury for theft of property
valued at $10,000 or more but less than $60,000, a Class C felony, based on his theft of
motors from his employer, White County Lumber Company. On January 29, 2013, he
pled guilty to theft of property valued at $500 or more but less than $1000, a Class E
felony, in exchange for a two-year sentence on probation and the payment of restitution,
with the amount to be set by the trial court at a later hearing. See State v. James Allen
Ballew, No. M2014-00378-CCA-R3-CD, 2015 WL 1059067, at *1 (Tenn. Crim. App.
Mar. 9, 2015).

        Following the restitution hearing, the trial court took the matter under advisement.
The trial court later entered an amended judgment which reflected that the amount of
restitution to be paid to White County Lumber Company was $11,000. Id. at *2. The
defendant appealed, arguing that the restitution amount was unreasonably high and
unsupported by the evidence. Because the judgment was silent as to payment terms and
there was no indication that the trial court considered the defendant’s ability to pay, this
court reversed and remanded to the trial court “for a new restitution hearing to determine
the restitution amount, Defendant’s ability to pay, and the payment terms.” Id. at *3.

       At the second restitution hearing, Ronald Thompson, who worked in maintenance
at the lumber company, identified from photographs fifty-five motors belonging to the
company that the defendant had sold for scrap to Cooper’s Recycling. He said the
company was able to recover twenty-five of those motors, but only two of them were still
in working condition. On cross-examination, he acknowledged his only proof that the
motors had belonged to the lumber company was his personal identification of the motors
as ones he had personally handled and recognized; the company had kept no inventory
and had recorded the serial number of only one of the recovered motors, which had been
brand new.

       Rex Holman, a handyman at the lumber company, identified a list he had prepared
of the replacement values of the motors that had been stolen. Mr. Holman testified that
the total replacement value of the motors was $36,953, from which he had subtracted
$480, the value of the two motors that were recovered in working condition, for a total
replacement cost or restitution value of $36,473. On cross-examination, he explained
that he had obtained his values by contacting “Slatton’s Enterprise” and getting a
quotation for the price of a “useable motor” to replace each stolen motor. He further
explained that some of the motors were very uncommon and therefore extremely hard to
replace. Upon questioning by the trial court, he testified that, with the exception of three
or possibly four motors which had just been uncrated, all of the stolen motors had been
used.

        Curtis Mills, the manager of Slatton Electric, testified that the list prepared by Mr.
Holman contained his estimation of the replacement value of each of the electric motors
identified in the photographs, for a total of $36,953. He said he had inspected the twenty-
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five recovered motors and found that only two were in working condition. He valued one
of those working motors at $375 and the other one at $75, for a total of $450.1 On cross-
examination, he acknowledged that he had not investigated what it would cost to repair
the non-working motors. He further testified that the replacement costs he had quoted
were for new motors, explaining that some of the motors were so popular that they were
unable to keep used inventory in stock, while it was unlikely that used replacement
motors could be found for some of the more uncommon motors.

        The fifty-two-year-old defendant testified that he currently had no income because
he had not worked anywhere, with the exception of an occasional odd job, since his
employment ended at White County Lumber. He said he received food stamps and made
too little to file income taxes. He testified that he had only a seventh grade education,
that all the jobs he had held in the past were as a manual laborer, and that he was “not
really” capable of any other kind of work. As for his physical health, he stated that he
saw a physician on a regular basis for ongoing back problems that resulted from a deer
hunting accident years earlier in which he had fallen from a tree. Finally, he testified that
he currently had no ability to pay any restitution and did not foresee any ability to do so
in the future.

       Following the defendant’s testimony, defense counsel informed the court that the
defendant had already completed his two years of probation and argued that he would be
unable to pay any amount of restitution. At the conclusion of the hearing, the trial court
ordered that the defendant pay restitution of $36,473 at the rate of $50 per month.
Apparently accepting defense counsel’s statement that the defendant had already
completed his probationary term, the court observed that the order of restitution should
likely be converted to a civil judgment, noting that “[i]t may be that the [S]tate needs to
look to convert this to a civil judgment against the defendant as probation is not
appropriate any longer[.]”

                                            ANALYSIS

       The defendant contends that the amount of restitution is unreasonable, arguing,
among other things: that he has no current income and poor prospects for finding
meaningful employment in the future given his age, health, and limited education and
work history; that the value given to the victim’s losses was erroneously inflated based on
the replacement cost of new, rather than used, motors; and that the trial court erroneously
ordered a payment schedule that would extend far beyond the expiration of his sentence
in order for him to pay the complete restitution amount. The State concedes that the trial

       1
          We recognize the discrepancy between this witness’s $450 valuation of the working motors and
the previous witness’s valuation of $480.
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court ordered an amount of restitution that the defendant could not reasonably be
expected to pay and lacked the authority to order a payment schedule that extended
beyond the length of the sentence. The State also seeks guidance from this court on the
trial court’s authority on remand to order any amount of restitution in the event that the
defendant’s probationary term has, in fact, been completed.

       We review a trial court’s order of restitution under an abuse of discretion standard,
with a presumption that the trial court’s ruling was reasonable. See State v. John N.
Moffit, No. W2014-02388-CCA-R3-CD, 2016 WL 369379, at *4 (Tenn. Crim. App. Jan.
29, 2016), perm. app. denied (Tenn. June 24, 2016) (citing State v. Bise, 380 S.W.3d 682,
708 (Tenn. 2012); State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012); State v. David
Allen Bohanon, No. M2012-02366-CCA-R3-CD, 2013 WL 5777254, at *4 (Tenn. Crim.
App. Oct. 25, 2013)). A trial court’s exercise of discretion will only be reversed on
appeal if the court “‘applied an incorrect legal standard, or reached a decision which is
against logic or reasoning that caused an injustice to the party complaining.’” State v.
Robinson, 146 S.W.3d 469, 490 (Tenn. 2004) (quoting State v. Shuck, 953 S.W.2d 662,
669 (Tenn. 1997)); see also State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999).

       Tennessee Code Annotated section 40-20-116 mandates restitution of either the
property or, if that is not possible, the value of the property in cases in which a defendant
has been convicted of “stealing or feloniously taking or receiving property[.]” Tenn.
Code Ann. § 40-20-116(a) (2012). “The purpose of restitution is 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). Tennessee courts are encouraged to order restitution
when appropriate, see Tenn. Code Ann. §§ 40-35-102(3)(D), -103(6), but trial courts “are
without inherent power or authority to order payment of restitution except as is derived
from legislative enactment.” State v. Alford, 970 S.W.2d 944, 945 (Tenn. 1998).

        When ordering restitution as a condition of probation, the trial court must consider
not only the victim’s losses, 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). This is because “[a]n order of restitution which obviously
cannot be fulfilled serves no purpose for the [defendant] or the victim.” Johnson, 968
S.W.2d at 886. The trial court shall specify the amount and time for payment and may
permit payment or performance of restitution in installments. Tenn. Code Ann. § 40-35-
304(c). The court may not establish a payment or schedule that extends beyond the
expiration of the sentence. Id. § 40-35-304(g)(2). If, however, any portion of the ordered
restitution remains unpaid at the expiration of the payment period, it may be converted to
a civil judgment. Id. § 40-35-304(h).



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        We conclude that the $50 per month ordered by the trial court was reasonable but
that the defendant, a fifty-two-year-old man with a seventh grade education and an
employment history consisting only of manual labor, could not reasonably be expected to
pay restitution of $36,473, regardless of the length of his probationary term. The trial
court, thus, erred in ordering that amount of restitution. The trial court also erred in
relying on the portion of the statute that allows for the conversion into a civil judgment of
any amount of restitution that is left unpaid at the expiration of a defendant’s sentence.
That statutory provision does not release a trial court from the obligation to set an amount
of restitution and payment terms that the defendant can reasonably be expected to satisfy.
This court addressed a similar issue in State v. Terence Alan Carder, No. W2009-01862-
CCA-R3-CD, 2010 WL 5272938 (Tenn. Crim. App. Dec. 10, 2010), in which the trial
court, relying on the fact that any unpaid amount of restitution may be converted to a
civil judgment, purposefully ordered an amount of restitution that the defendant could not
possibly pay within the length of his sentence under the payment schedule ordered by the
court. This court wrote:

               We would further point out that the trial court’s reliance upon the
       portion of the statute which allows for conversion of an unpaid restitution
       amount to civil judgments is misplaced. That statute speaks to the ordered
       amount of restitution in a case; it was not intended to serve as a “free pass”
       in civil court to ensure a judgment of loss. The victim should pursue this
       matter directly in civil court and establish his case before a judge with
       jurisdiction to determine civil judgments, which the trial court initially
       recognized during his statement to the victim at the first hearing. It remains
       the function of the civil court to determine the judgment amount which
       should be entered against the defendant.

Id. at *6.

        Although not raised by the defendant, the State cites State v. Carolyn Wheeler,
No. M2001-00337-CCA-R3-CD, 2002 WL 440230, at *1 (Tenn. Crim. App. Mar. 18,
2002), which held that a trial court lacks statutory authority to order restitution following
the expiration of a defendant’s sentence, to question whether the trial court has
jurisdiction to order restitution on remand. The State notes, however, that there is
nothing in the record, other than the statement of counsel, to indicate that the defendant’s
sentence has, in fact, expired. The State further notes that the trial court was acting in
accordance with this court’s directive from the first direct appeal in conducting the new
restitution hearing and, therefore, requests clarification on the trial court’s authority in the
matter.



                                              -5-
       We agree with the State that it is unclear from the record whether the defendant’s
probationary term has expired. We, therefore, reverse and remand to the trial court for a
determination of how many months, if any, are remaining on the defendant’s sentence.
Should there be any time remaining on the defendant’s sentence, we direct the trial court
to enter an amended judgment reflecting a restitution order in the amount of $50
multiplied by the number of months remaining in the sentence. In the event that the
defendant has completed his probation, we direct the trial court to enter an amended
judgment reflecting a restitution order of $0. Given the defendant’s poor financial
condition and limited prospects for lucrative employment, we find it unnecessary to
address whether our directive to the trial court to hold a new restitution hearing tolled the
probationary period such as to allow the trial court to retain jurisdiction in the case after
the probationary period would have normally expired.

                                     CONCLUSION

       Based on the foregoing authorities and reasoning, we reverse the judgment of the
trial court as to restitution and remand for further proceedings consistent with this
opinion.

                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE




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