State v. Sherry Jenno ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL SESSION, 1999 June 2, 1999
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9811-CC-00437
)
Appellee, )
)
) MARION COUNTY
VS. )
) HON. J. CURTIS SMITH,
SHERRY JENNO, ) JUDGE
)
Appe llant. ) (Sentencing)
ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF MARION COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
PHILIP A. CONDRA JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
P.O. Box 220
200 Betsy P ack Drive CLINTON J. MORGAN
Jasper, TN 37347 Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
J. MICHAEL TAYLOR
District Attorney General
First American Bank Building
Suite 300
Dayton, TN 37321
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant, Sherry Jenno, appeals from the trial court’s determination
of the manner of service of her sentence and other sentencing conditions. On
April 8, 1998, Defendant pleaded nolo contendere to arson, a class C felony.
The agreed sentence was four years, with the manner of service of the sentence
left to the disc retion of the trial judge. The trial judge ordered one year to be
served in the county jail, with the balance to be served on probation, and also
awarded restitution. T he De fendan t appea ls from the senten cing orde r. We
affirm.
The events lea ding to Defendant’s conviction appear to have begun when
the victims, Mr. and Mrs. David Whited, purchased a parcel of land from
Defe ndan t’s father. According to the re cord, D efend ant’s family re fused to perm it
a survey of the parcel, which adjoined their property, prior to the sale . The two
families feuded over the property line after the sale, and Defendant warned the
victims weeks prior to the arson that her father wished to hire someo ne to burn
the home the victims had built on the lot. On October 6, 1996, the victims’ home
burned , and inve stigators d etermin ed that the fire was ca used inte ntionally.
At the plea hearing, the assistant district attorney general attested that, had
this case been tried, the State wou ld have prese nted e videnc e that D efend ant’s
daughter saw Defendant give Sam McMurry $500 to burn the victims’ residence.
Furthermore, McM urry ha d alrea dy pleaded guilty on charg es aris ing from this
incident, and he had agreed to testify for the State that Defendant gave him $500
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to burn the victims’ residence and that he did com mit that ars on. Afte r this
information was prese nted, Defen dant pleade d nolo conten dere to arson for the
recommended sentence of four years, with the manner of service left to the
discretion of the trial cou rt.
Following a sentencing hearing, the trial judge sentenced Defendant to four
years, with the first year to be served in confin ement in the county jail and the
remaining three years to be served on probation. Furthermore, the court ordered
that Defendant’s case would be reviewed after four months in confinement; and
upon an app ropriate find ing, she c ould be probate d at that tim e. Finally, the
judge ordered Defendant to pay $50,000 restitution to the victims, but he declined
to order any schedule of periodic payments.
Specifically, Defendant argues that the sentence ordered by the trial court,
involving a maximum of one year in co nfinem ent, doe s not com port with
sentencing purposes and considerations. In addition, she contends that
restitution was im pose d without considera tion of th e criteria conta ined in
Tennessee Code Anno tated § 4 0-35- 304. W e affirm the trial c ourt’s
determination of the manner of service of Defendant’s sentence and conditions
imposed thereon.
When an accused challenges the length, range, o r mann er of service of a
sentence, this Court has a duty to conduct a de novo review of the sentence with
a presumption that the determinations made by the trial court are correct. Tenn.
Code Ann. § 40-35 -401( d). Th is pres ump tion is “conditioned up on the affirmative
showing in the record that the trial court considered the sentencing principles and
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all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 19 91).
When conducting a de novo review of a sentence, this Court must
consider: (a) the evidence, if any, received at the trial and sentencing hearing; (b)
the presentence report; (c) the princip les of sen tencing a nd argu ments as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of
potential for rehabilitation or treatm ent. State v. S mith, 735 S.W.2d 859, 863
(Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.
If our review reflects that the trial court followed the statutory sentencing
procedure, that the court imposed a lawful sentence after having given due
consideration and proper weight to the factors and principles set out under the
sentencing law, and that the trial court’s findings of fact are adequately supported
by the record, then we may not modify the sentence even if we would have
preferred a different re sult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.
App. 1991 ).
Based upon our revie w of the record, w e are satisfied that the trial cou rt
prope rly applied the sentencing principles and considerations. After the trial
judge heard all evidence presented at the sentencing hearing, he stated,
I believe the first determination for me is whether Mrs. Jenno
is entitled to the statutory presump tion for alternative sentencing.
The statutes that apply [are] TCA 40-35-1 02 (5) an d (6) in ord er to
be eligible for the statutory presumption of alternative sentencing
and when I say alternative sentencing that’s something other than
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a sentence to the Department of Corrections. Three requirem ents
must be met. First, the defendant must be convicted of a Class C,
D, or E felony, th is is a C felon y.
Second, the defendant must be a standard offender, and she
is, and thirdly, the defendant must not fall within the parameters of
40-35-102 (5), which has reference to certain felonies , and th is is
not one of those e nume rated felon ies.
So generally speaking in order to benefit from the
presumption a defendant cannot have a criminal history evincing
either a clear disregard for the laws and morals of society, she has
no criminal history. Or a failure of past efforts at rehabilitation. Of
course , that does not app ly.
So here we have a defendant who is a Class C or has plead
[sic] to a Class C felony so she’s entitled to the—under the law the
statutory p resum ption for alte rnative se ntencing .
The trial court continued, stating,
The presumption may be rebutted by evidence to the contrary,
which is [sic] the words of art from TCA 40-35-1 02 (6). Evid ence to
the contrary may include the following sentencing considerations
which are codified in 40-35-103. Sentencing involves Number (1)
sentences involving confinement should be based on the following
considerations: Number (1) confinement necessary to protect
society by restraining a defendant who has a long history of criminal
condu ct[.] Secondly, confinement is necessa ry to avoid depreciating
the seriousness of the offense or confinement is particularly suited
to provide an effective deterrence to othe rs likely to com mit serious
offenses; or thirdly, measures less restrictive than confinem ent have
freque ntly or recently been applied unsuc cessfully to the defen dant.
The Court may also apply the mitigating and enhancing
factors set forth in 40-35-113 and 114 a s they are relevant to 40-35-
103 considerations. Finally, the potential or lack of potential for
rehabilitation of the defendant should be considered in determining
whether that de fenda nt sho uld be granted an alternative sentence.
There is no proof in the record about deterrence. That is
whether sentencing to confinement would result in deterrence, so I
can’t consider that one.1
...
Howeve r, 40-35-103 (1) (B) co nfinem ent ne cess ary to a void
depreciating the seriousness of the offense. In order to deny an
alternative sentence based on the seriou sness o f the offens e, . . .
1
Upon the State’s urging that the trial court could consider whether others likely to
commit a similar offense would be deterred by the confinement of Defendant, the trial court
responded that State v. Zeolia, 928 S.W.2d 457 (Tenn. Crim. App. 1996), mandates that before
a trial court may deny alternative sentencing on the basis of deterrence, evidence in the record
must support a need within the jurisdiction to deter individuals other than the defendant from
committing similar crimes. The trial judge concluded that because he found no evidence in the
record to support the need for deterrence, he could not properly consider it as a factor to deny
alternative sentencing.
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the circumstances of the offense as committed must be espe cially
violent, horrifying, shocking, reprehensible, offensive or otherwise
of an excessive or exaggerated degree that the nature of the offense
must outwe igh all factors favoring a sentence other than
confinem ent.
Then the [Zeolia ] Court go es on to s ay the extent of the
victim’s financial losses can be considered, it was considered in
Zeolia. The Court also says that in this aspect a Court is not
required to ignore that co nduc t as it relates to the evaluation of other
senten cing facto rs.
I think the proof clearly shows here that the victims have
suffered substantial financial losses, even assumin g that they have
some success in rec overing an ything by virtue of a law suit. The
proof clearly shows tha t they have suffere d and will suffer
substantial financial losses a s a result o f the fire whic h goes to what
I just mentioned, that is depreciating the seriousness of the offense.
Given that analysis of the law a nd the facts that I have I think
the factor as it relates to depreciating the seriousness of the offense
and the financial losses the victims have suffered is one—is a factor
that bea rs consid erable w eight.
As the trial court noted, Defendant was entitled to a presumption of some
form of alternative sentence. The trial court ordered a form of alternative
sentencing—split confinement. Because he found that a sentence of total
probation would depreciate the seriousness of the offense, the judge ordered that
four to twe lve mon ths be se rved in co nfinem ent.
W e are convinced both that the trial court’s determination deserves the
presumption of correctness by this Court and that the evidence contained in the
record does not overcome that presumption. This issue lacks merit, and the
manner of service of Defendant’s sentence is affirmed.
Next, we review the trial cou rt’s order of $50,000 restitution. When
ordering Defendant to pay $50,000 restitution, the trial court stated,
In setting the amount of restitution it’s a difficu lt situatio n. It’s
a situation where we have a woman[] that committed or been [sic]
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part and parcel of committing just a grievous crim e, it’s hard to think
of much in the arson line that’s worse than being part and parcel of
burning som eone ’s home. It’s really quite a despicable act for Mrs.
Jenn o’s standp oint. I—if the law allowed incarceration in the
Department of Corrections tha t’s where I would send her, but I think
under the law and under the facts I’ve sentence d her to what is
approp riate under the 1989 law.
...
I’m making a spec ific finding that the dam ages were more
than [$50,000]. I’m setting the restitution at that amount based on
the facts o f this case.
...
I think [De fendan t] posse sses the presen t ability to pay some
restitution. I think— there’s been no tes timon y that sh e’s ph ysically
unsound. Apparently she’s chosen not to work for whatever
reasons. She’s apparently skilled enough to work in a gas station.
She could remain permanently employed in a gas station, so I think
she has the ability to pay the restitution that I’ve ordered, assuming
that she w ill work.
The judgm ent en tered in this case sets restitution in the amount of $50,000
but does not specifically state that restitution is being set as a condition for
probation. See Tenn. Code Ann. § 40-35-304(a). If restitution is set as a
condition of probation, the statute requires the trial court to specify at the time of
the sentencing hearing the “amount and time of payment” of restitution. Tenn.
Code Ann. § 40-3 5-304(c). The court may permit payment in installments but
may not establish a payment schedule extending beyond the statutory maximum
term of prob ation th at cou ld have been imposed for the offen se. Id. In
determining the amount and method of payment, the court is required to consider
the financial resources and future ability of the defenda nt to pay. Tenn. Code
Ann. § 40-3 5-304(d).
Prior to July 1, 1996, our law allowed restitution to be ordered only as a
condition for probation, and thus, restitution was not authorized in conjunction
with a senten ce of total inc arceratio n. See State v. Davis , 940 S.W.2d 558, 561-
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62 (Tenn. 1997). Effective July 1, 1996, the legislature authorized ordering
restitution to the vic tim or vic tims e ither alo ne or in conju nction with any other
sentence authorized by law. Tenn. Code Ann. § 40-35-104(c)(2). In such a
case, the legislature has mandated that the procedure for a defendant sentenced
to pay restitution shall be the same as when the restitution is ordered as a
condition of proba tion. Ten n. Cod e Ann. § 40-35-304 (g). How ever, a
defend ant’s responsibility to pay restitution sh all not extend beyo nd the exp iration
of the sentenc e impose d by the court. Te nn. Code Ann. § 40-3 5-304(g)(2).
In the case at bar, the Court did no t estab lish a pa ymen t sche dule in
conjunction with Defendant’s term of probation. It is clear from this record that
Defendant was not expected to be able to pay $50,000 in lump sum. At the
sentencing hearing, the assistant district attorney, the public defender and the
trial judge discussed at leng th De fenda nt’s financ ial situa tion an d, esp ecially in
view of her pending incarceration for at least four months, her inability to make
any regular pa ymen ts of res titution u ntil such time a s she beca me e mplo yed.
Because Defendant was not ordered to make regularly scheduled payments, it
is doubtful that her probation could be violated for failure to comply with the order
of restitution.
From our review of the rec ord we con clude that the evidence presented
suppo rts the trial judge’s finding that the pecuniary loss of the victim exceeded
$50,000. In setting the restitution at $50,000, the trial judge stated that he was
doing so in consideration of the financial resources and future ability of
Defendant to pay. See Tenn. Code Ann. § 40-35-304(d). Whether Defendant
will have the actual ab ility to pay $50 ,000 during her four -year s enten ce is
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doub tful, but remains to be seen. W e are unable to conclude that the trial judge
erred or abused his discretion when he set restitution in this case at $50,000.
This issu e is withou t merit.
W e conclude that the trial co urt prope rly senten ced De fendan t to a term
of four years split confinement, with up to one year to be se rved in the co unty jail
and the remainder to be served on probation. We further find that the trial court
considered all relevant factors and appropriately ordered Defendant to pay
$50,000 restitution to the victims. The judgment of the trial court is affirmed.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JOHN H. PEAY, JUDGE
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
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