State v. Gabriel Blackman ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FILED
JANUARY 1998 SESSION
February 26, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9704-CC-00135
Appellee, )
) McNAIRY COUNTY
VS. )
) HON. JON KERRY
GABRIEL BLACKMAN, ) BLACKWOOD, JUDGE
)
Appellant. ) (Sentencing - Restitution)
FOR THE APPELLANT: FOR THE APPELLEE:
GARY F. ANTRICAN JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
JEANNIE A. KAESS JANIS L. TURNER
(At Hearing) Assistant Attorney General
Assistant Public Defender Cordell Hull Building, 2nd Floor
17805 Highway 64 425 Fifth Avenue North
P.O. Box 700 Nashville, TN 37243-0493
Somerville, TN 38068-0700
ELIZABETH T. RICE
C. MICHAEL ROBBINS District Attorney General
(On Appeal)
3074 East Street ED NEAL McDANIEL
Memphis, TN 38128 Assistant District Attorney General
300 Industrial Park Drive
P.O. Box 473
Selmer, TN 38375-0473
OPINION FILED:
REMANDED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Gabriel Blackman, pled guilty in the McNairy County Circuit
Court to one (1) count of aggravated burglary and one (1) count of burglary. The
trial court imposed concurrent sentences of three (3) years and two (2) years,
respectively. The trial court suspended the sentences, except for thirty (30) days,
and ordered the remainder of the sentence to be served on probation. As a
condition of probation, the trial court ordered that defendant pay $6,000 in restitution
to the victims. On appeal, defendant challenges only the trial court’s imposition of
restitution. After a review of the record before us, we remand to the trial court for
further proceedings consistent with this opinion.
I
The defendant, Michael A. Carroll and Clay Kiser Henry were indicted on one
(1) count of aggravated burglary and one (1) count of burglary. The offenses, while
occurring on the same day, involved two separate victims. Each defendant pled
guilty to the charged offenses and received concurrent sentences of three (3) years
and two (2) years, with all but 30 days suspended. The trial court also required
each to pay $6,000 in restitution as a condition of probation. Carroll and Henry
were sentenced approximately four days prior to defendant.
At defendant’s sentencing hearing, the state’s proof consisted of the
assistant district attorney’s request that the presentence report and the statement
of facts presented at the guilty plea be made part of the record.1 The only testimony
at the hearing was that of the defendant, who agreed to pay restitution for property
damage caused by the aggravated burglary.
The record contains victim impact statements and a list of items and total
loss sustained by one victim. J.R. Tull, the victim of the burglary, requested total
1
No “statement of facts” was attached to the transcript as an exhibit. However,
defendant’s presentence report is part of the record on appeal.
2
restitution in the amount of $4,500. Tull did not submit any documentation for this
loss and asked that $4,000 of the total amount be paid for “mental distress.” Donald
Nelson, the aggravated burglary victim, supplied an itemized list of his loss, which
amounted to $6,083.72.2
At the conclusion of the hearing, the trial court imposed the sentences and
added, “[r]estitution will be in the amount of $6,000.” No findings of fact or
allocation to the victims were made by the trial court regarding restitution.
II
Defendant contends that there is no basis in the record to support the trial
court’s imposition of restitution. He argues that the state failed to present any
evidence of the victims’ pecuniary loss. Therefore, he maintains that the trial court
erroneously ordered the payment of restitution.
A trial court may order a defendant to pay restitution as a condition of
probation. Tenn. Code Ann. § 40-35-304(a). The amount of restitution is based
upon the victim’s pecuniary loss. Tenn. Code Ann. § 40-35-304(b). The term
“pecuniary loss” is defined as:
(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 . . .
Tenn. Code Ann. § 40-35-304(e). In determining the amount of restitution, the trial
court should consider the financial resources of the defendant and future ability to
pay. Tenn. Code Ann. § 40-35-304(d); State v. Smith, 898 S.W.2d 742, 747 (Tenn.
Crim. App. 1994). Furthermore, the sum imposed should be reasonable. Smith,
898 S.W.2d at 747.
2
It appears that this loss was covered by insurance. The itemized list indicates a
deductible of $250, reducing the loss to $5,833.72. We assume an insurance company paid
the victim $5,833.72 for this loss after reducing the total loss of $6,083.72 by the $250
deductible.
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III
This case must be remanded to the trial court for a hearing on the issue of
restitution. The record contains insufficient evidence to support the trial court’s
decision.3 Although the trial court probably did not consider “mental distress” in
setting restitution, mental distress is not a compensable pecuniary loss as
contemplated by the statute. See generally State v. Lewis, 917 S.W.2d 251 (Tenn.
Crim. App. 1995).
Furthermore, this cause involves two victims and possibly an insurance
company. The trial court should allocate the amount among the interested parties.4
Moreover, the written judgments of conviction provide for $6,000 restitution
on both counts. This implies that defendant is responsible for $12,000 in restitution,
or $6,000 for each victim.
On remand, the trial court must resolve several issues, including:
1. The actual loss sustained by each victim, as substantiated by
appropriate documentation or testimony adduced at the hearing;
2. The defendant’s ability to pay such restitution;
3. The manner and time frame in which defendant will be required
to make payments; and
4. The allocation of restitution among the victims and/or insurance
company.
IV
3
See Tenn. Code Ann. § 40-35-304(b) (“[w]henever the court believes that restitution
may be proper . . . the court shall order the presentence service officer to include in the
presentence report documentation regarding the nature and amount of the victim's pecuniary
loss.).
4
Effective July 1, 1996, Tenn. Code Ann. § 40-35-304 was amended to include the
following:
If the court sentences a defendant to payment of restitution and believes that
payment to more than one (1) victim is proper, the court shall determine the
pecuniary loss of each victim as provided in this section and shall order such
amount of restitution to each such victim
Tenn. Code Ann. § 40-35-304(g)(3).
4
For the foregoing reasons, we remand to the trial court for findings on the
issue of restitution as required by Tenn. Code Ann. § 40-35-304. Upon remand, the
trial court shall receive such further testimony as the parties might wish to offer.
JOE G. RILEY, JUDGE
CONCUR:
JOE B. JONES, PRESIDING JUDGE
PAUL G. SUMMERS, JUDGE
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