        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

                                               -6-
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.

                                              -7-
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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