IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY SESSION, 1997
FILED
STATE OF TENNESSEE, ) July 18, 1997
) No. 02C01-9610-CR-00348
Appellee ) Cecil Crowson, Jr.
) SHELBY COUNTY Appellate C ourt Clerk
vs. )
) Hon. BERNIE WEINMAN, Judge
HEATHER R. DOWDY, )
) (Aggravated Burglary;
Appellant ) Theft of property worth less
than five hundred dollars)
For the Appellant: For the Appellee:
R. PORTER FEILD CHARLES W. BURSON
Burch, Porter & Johnson Attorney General and Reporter
130 North Court Avenue
Memphis, TN 38103
LISA A. NAYLOR
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
WILLIAM GIBBONS
District Attorney General
P. T. HOOVER
Asst. District Attorney General
201 Poplar Avenue, 3rd Floor
Memphis, TN 38103
OPINION FILED:
REMANDED
David G. Hayes
Judge
OPINION
The appellant, Heather R. Dowdy, pled guilty in the Shelby County
Criminal Court to one count of aggravated burglary, a class C felony, and two
counts of theft of property valued less than five hundred dollars, class A
misdemeanors. Pursuant to the plea agreement, the trial court imposed
concurrent sentences of three years incarceration in the county workhouse for
the burglary conviction and eleven months and twenty-nine days incarceration in
the county workhouse for each of the theft convictions. Following a sentencing
hearing, the trial court suspended the sentences, except for one hundred and
eighty days to be served on weekends. Additionally, the trial court imposed six
years of intensive probation. The conditions of probation included restitution in
the amount of $7,200.00, to be paid in monthly installments of $100.00, one
hundred hours of community service, and a 9:00 p.m. curfew.
On April 26, 1996, the appellant filed a motion pursuant to Tenn. R. Crim.
P. 35(b) for reduction of her sentence. On May 10, 1996, the trial court denied
the appellant’s motion. The appellant now appeals the trial court’s denial of her
motion and also appeals pursuant to Tenn. Code Ann. § 40-35-401 (1990).
Specifically, the appellant challenges the amount and terms of restitution and,
consequently, the length of her probationary period; the imposition of a 9:00 p.m.
curfew; and the requirement of drug testing and counseling.
I. Factual Background
On March 29, 1996, the trial court conducted a hearing in order to
determine the manner of service of the appellant’s sentences. The appellant
testified that she was employed by a company called “We Rep You Advertising
Agency.” She worked four days each week and was paid $5.00 per hour. She
further testified that she had only completed the ninth grade in school but had
2
obtained a GED. The appellant resides with her current boyfriend, who owns a
small business.
The appellant’s criminal record consists of a 1992 conviction for disorderly
conduct and public intoxication, a 1991 conviction for DUI, and a 1991 conviction
for a traffic offense. She was placed on probation pursuant to the DUI
conviction. Her probation was revoked following her conviction for disorderly
conduct and public intoxication. Additionally, the appellant admitted to the pre-
sentence investigator that she had previously experimented with marijuana and
cocaine.1 At the hearing, the appellant reaffirmed her guilt of the instant
offenses and asserted that she accepted responsibility for her crimes. She
recounted that her co-defendant, Scott Marino, had been her boyfriend at the
time of these offenses. She explained that she and Marino decided to commit
the burglaries or thefts because they were unemployed and needed money. The
appellant testified that Marino had previously been convicted of burglary and was
convicted of burglary in this case.2 Finally, she further asserted that her
boyfriend was abusive and was the principle actor in the commission of these
crimes.
The appellant testified at the hearing that she could probably pay $100.00
per month toward restitution to the victims. The victim impact statements
included in the record indicate that, with respect to the misdemeanor theft
convictions, the appellant stole jewelry and silver flatware worth approximately
$7,606.00 from her aunt, Jane Graham. Douglass Curry, the appellant’s step-
father and the victim of the second theft, indicated that he did not want restitution
from the appellant and declined to state the value of any property stolen from
1
The appellant also indicated that she drank heavily for approximately one year at the age
of nineteen. She asserted that she no longer abused alcohol or drugs.
2
The pre -senten ce rep ort indicates that the appellant’s c o-defendant wa s senten ced to six
years incarceration, presumably in the Department of Correction. The appellant testified that
Marino is currently serving his sentence.
3
him by the appellant. With respect to the felony burglary conviction, the victim
Patti Ramsey reported that the appellant stole property worth approximately
$3,465.37.
II. Analysis
Pursuant to Tenn. Code Ann. § 40-35-401(d) (1990), review by this court
of the manner of service of a sentence is de novo with a presumption that the
determination made by the trial court is correct.3 This presumption only applies,
however, if the record demonstrates that the trial court properly considered
sentencing principles and all relevant facts and circumstances. State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). In any event, the appellant bears the
burden of establishing that the sentences imposed by the trial court are
erroneous. State v. Lee, No. 03C01-9308-CR-00275 (Tenn. Crim. App. at
Knoxville, April 4, 1995).
At the conclusion of the sentencing hearing, the trial court stated:
I'm going to place you on six years probation; restitution at a
hundred dollars a month. As part of that probation you are to serve
180 days at the Shelby County Correctional Center starting at 7:00
p.m. on Friday until 7:00 p.m. Sunday, every weekend -- so you
can continue to work and make this restitution. In addition, do a
hundred hours of community service. That's intensive probation
and that's a 9:00 p.m. curfew.
The appellant challenges the conditions of her probation, i.e. the terms
and amount of restitution, the imposition of a curfew, and mandatory drug
testing.
3
Again, the app ellant also challenges the trial co urt’s denial of her m otion p ursuan t to
Tenn. R. Crim. P. 35(b) for reduction of her sentence. In contrast to the standard of review
applicable to sentencing appe als perfected pursu ant to Tenn. C ode An n. § 40-35-401 (d),
app ellate review o f Ru le 35(b) rulings is g overned by the “a bus e of d iscre tion” stand ard. State v.
Irick, 861 S.W .2d 375, 376 (T enn . Crim . App . 1993); State v. Burden, No. 02C01-9509-CC-00267
(Tenn. Crim. App. at Jackson, February 5, 1997). Clearly, therefore, a determination of the
app ellant’s T enn . Code A nn. § 40-3 5-40 1(d) app eal will also resolve her R ule 35 (b) appe al.
4
A. Imposition of Special Conditions
First, we review the appellant’s claim that the trial court’s imposition of a
9:00 p.m. curfew is improper. The appellant contends that the curfew is “unduly”
restrictive of her liberty. Tenn. Code Ann. §40-35-303(d)(9). Specifically, the
appellant contends that, as a result of the curfew, she is unable to accept full-
time employment at a convenience store at night. However, the Probation Order
clearly authorizes the appellant’s probation officer “to give permission for night
employment if necessary.” In light of the probation officer’s authority, we do not
find that the conditions of the appellant’s probation are unduly burdensome.
Moreover, should the appellant encounter insurmountable obstacles in
complying with the conditions of her probation, Tenn. Code Ann. §40-35-308
(1990) permits the appellant or her probation officer to apply to the trial court for
the modification or removal of any condition.
With respect to the appellant’s challenge to conditions of her probation
relating to drug testing and counseling, the record before this court does not
reflect that any such conditions were imposed by the trial court. Therefore, we
are unable to consider this issue. See Tenn. R. App. P. 24(b) (it is the
appellant’s obligation to have prepared an adequate record in order to allow
meaningful review on appeal).
B. Restitution
The appellant challenges the trial court’s imposition of restitution in the
amount of $7,200.00, to be paid in monthly installments of $100.00. She argues
that the trial court, in imposing restitution, did not adequately account for her
ability to pay or her co-defendant’s participation in the crimes. Moreover, she
5
contends that, because the trial court did not consider these factors in imposing
restitution, it could not impose a probationary period of six years in order to
accommodate the payment schedule.
Tenn. Code Ann. § 40-35-304(a) (1996 Supp.) authorizes the sentencing
court to impose restitution as a condition of probation. Tenn. Code Ann. §40-35-
304(c) provides that a court must establish a restitution payment schedule that
does not extend beyond the maximum term of probation supervision that could
have been imposed for the offense. A court may place a defendant on
supervised probation for a period of time up to and including the statutory
maximum time for the class of conviction offense. Tenn. Code Ann. §40-35-
303(c). Thus, the trial court was authorized to impose a probationary period of
six years for the offense of aggravated burglary and extend the appellant’s
restitution payments for this crime over that time. See 40-35-111(b)(3) (1990).
With respect to the appellant’s contention that the order of restitution fails
to account for her co-defendant’s proportionate liability, we disagree. In
essence, the appellant asks that we adopt some form of comparative fault for the
purpose of determining restitution in criminal cases. This we decline to do.
While this court has tacitly acknowledged the trial court’s authority to impose joint
and several liability for restitution upon co-defendants, see, e.g., State v.
Roberts, No. 01C01-9410-CC-00332 (Tenn. Crim. App. at Nashville, March 10,
1995), and State v. Akins, No. 134 (Tenn. Crim. App. at Knoxville, June 28,
1991), the 1989 Sentencing Act does not require the division of restitution
responsibility. In any case, we recognize that the policy expressed by the
legislature in the 1989 Sentencing Act is that the punishment imposed should fit
the crime and the offender. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim.
App.), perm. to appeal denied, (Tenn. 1996). See also Johnson, No. 03C01-
9606-CC-00214(restitution is not only a means of compensating the victim, but
6
also a form of punishment). In the context of this policy, the appellant
acknowledged at the sentencing hearing that she was a full participant in the
burglary. Moreover, the record does not reflect that the co-defendant, Marino,
was convicted for the incidents resulting in the appellant’s theft convictions.
Next, the appellant argues that the trial court failed to consider her ability
to pay in awarding restitution. The record reflects that the appellant is a single
person who lives with her boyfriend and currently earns $5.00 per hour. The
appellant testified at the hearing that she could make scheduled restitution
payments of “probably about a hundred dollars a month.” Based on these facts,
the trial court ordered restitution payments of $100.00 per month. The appellant
offered no other proof at the hearing relating to her ability to pay. We find this
issue without merit.
In performing our review of the issues in this case, we are constrained to
note that the trial court, in ordering restitution, combined the pecuniary losses of
both victims into one payment and ordered that this amount be repaid over the
seventy-two month period of supervision for the aggravated burglary conviction.
This, in effect, permitted the restitution for the misdemeanor conviction to be
repaid over a six year period.4 The plain language of our statute requires that
restitution as a condition of probation be related to the offense that warrants the
probation. See Tenn. Code Ann. § 40-35-304(a). In other words, the trial court
cannot order a restitution payment schedule extending beyond the statutory
maximum term for the offense occasioning the restitution, or attach the
restitution schedule to an unrelated offense. Moreover, the proof in the record
pertaining to the losses of the two victims conflicts with that amount set by the
4
The a ppellant’s plea bargain agre em ent perm itted her to plead to m isdem eanor theft
which involved a loss from the victim, Jane Graham , of $7607.00. As previously noted, the
second misdemeanor theft involved the victim’s stepfather and no restitution was sought. The
burglary conviction involved the victim, Patti Ramsey, and restitution of $3590.37.
7
trial court5 and there is no apportionment of the restitution between the two
victims. Accordingly, we find it necessary to remand this case for a
determination of the amount of restitution applicable to each offense, the
imposition of payment schedules in accordance with this opinion, and a
determination of the appropriate probation period.6 7
Notwithstanding our decision to remand, we also note that the victim
impact statements, included in the record, reflect that the property stolen from
Ms. Graham and Ms. Ramsey was insured and that their respective insurance
companies have paid these claims. Whether or not an insurance company is a
"victim" contemplated by the legislature in providing for repayment of restitution
to "victims", see Tenn. Code Ann. § 40-35-304, is currently pending before our
supreme court. Thus, although this court has held an insurance company to be
a victim for purposes of restitution, this issue may be moot dependant upon the
decision of our supreme court. See State v. Alford, No. 02C01-9509-CC-00281
(Tenn. Crim. App. at Jackson, Sept. 30, 1996), perm. to appeal granted, (Tenn.
Apr. 14, 1997).
For the foregoing reasons, this case is remanded consistent with this
opinion.
5
The victim impact statements revealed that Jane Graham sustained a loss of $7,606.00,
while Patti Ramsey suffered losses amounting to $3590.37, a total of $11,196.37. Apparently, the
trial court acc epte d the State 's argum ent in determ ining the am oun t of res titution. The S tate
argued that Graham sustained a loss of $3700 and Ram sey, a loss of $3590.37, totaling
$7290.37.
6
The trial court may conclude that a probationary period of six years for the aggravated
burglary offense is still appropriate. However, it must base its determination on factors other than
the payment schedule for restitution to victims of another offense.
7
W e would note that m any of the pro blem s presente d in this case could be elim inated by
carefully constructed plea agreements.
8
____________________________________
DAVID G. HAYES, Judge
CONCUR:
__________________________________
PAUL G. SUMMERS, Judge
__________________________________
THOMAS T. WOODALL, Judge
9