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State v. Jewell

Court of Criminal Appeals of Tennessee, Nashville

May 7, 2019

STATE OF TENNESSEE
v.
JENNIFER MURRAY JEWELL

          Assigned on Briefs at Knoxville July 24, 2018

          Appeal from the Circuit Court for Williamson County No. I-CR116885 Joseph A. Woodruff, Judge

         The Appellant, Jennifer Murray Jewell, entered a best interest guilty plea to theft of property valued over $60, 000, a Class B felony. Pursuant to the plea agreement, the Appellant received a sentence of ten years to be served on supervised probation. After a hearing, the trial court ordered the Appellant to pay $100, 000 in restitution by monthly payments of $861.80 during her sentence. On direct appeal, this court held that the State failed to adduce sufficient proof of the victim's loss; therefore, the case was remanded to the trial court to determine the amount of the victim's loss and restitution. On remand, the Appellant represented herself at the second restitution hearing. The trial court determined that the victim suffered a total loss of $341, 122.65 and ordered restitution of $47, 000, to be paid in monthly installments of $500 for the remaining ninety-four months of her probationary sentence. On appeal, the Appellant contends that she was denied her right to counsel at the second restitution hearing and that the trial court failed to consider her ability to pay in determining the amount of restitution. Upon review, we affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Matthew J. Crigger, Brentwood, Tennessee (on appeal), for the Appellant, Jennifer Murray Jewell.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Kim R. Helper, District Attorney General; and Tammy Rettig, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and J. Ross Dyer, JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         I. Factual History

         A. Guilty Plea/Original Restitution Hearing

         On November 5, 2012, the Williamson County Grand Jury returned an indictment charging the Appellant with theft of property valued over $60, 000 from her employer, Wilson and Associates Engineering and Surveying, P.C. ("Wilson and Associates"). On April 16, 2015, the Appellant entered a best interest plea to the charge. The plea agreement provided that the Appellant would receive a sentence of ten years, which, if approved by the trial court, would be suspended to supervised probation. The plea agreement further provided that the trial court would determine the amount of loss and restitution.

         At the restitution hearing, Judge Joseph A. Woodruff[1] found that while the Appellant worked as an office manager for Wilson and Associates between 2004 and 2009, she stole $372, 000. State v. Jennifer Murray Jewell, No. M2015-02141-CCA-R3-CD, 2017 WL 65242, at *1, 4 (Tenn. Crim. App. at Nashville, Jan. 6, 2017). The trial court determined that the Appellant should pay $100, 000 in restitution and ordered her to pay $861.60 per month during the term of her ten-year sentence. Id. at *4.

         The Appellant appealed, arguing that the trial court failed to follow statutory procedures in determining the total amount of restitution and the monthly payments, that the trial court erred in failing to consider her financial resources and future ability to pay, and that the proof regarding the amount of the victim's loss was inadequate. Id. at *5. On appeal, this court held that the trial court properly considered the Appellant's financial resources and ability to pay but that the State's proof of the victim's loss was not adequate, and the case was remanded to the trial court. Id. at *7, 10.

         B. Second Restitution Hearing

         After the case was remanded to the trial court, the State filed a motion requesting a status hearing to determine the Appellant's "legal representation status and to schedule an evidentiary hearing." The State maintained that the Appellant's original counsel was no longer practicing law.

         Shortly after the motion was filed, the Appellant filed a Uniform Affidavit of Indigency requesting that counsel be appointed to assist her during the second restitution hearing. On the form, the Appellant stated that she had started a job at Gibco making $40, 000 per year, that she had $200 in her checking account, and that she had a 2012 Ford Focus valued at $8, 000 on which she owed $8, 500. Judge Michael W. Binkley found that the Appellant was not indigent and was not entitled to appointed counsel for the second restitution hearing.

         On June 14, 2017, Judge James G. Martin III issued a probation violation warrant because the Appellant had been arrested for new theft offenses. On June 19, 2017, Judge Woodruff filed an order reflecting that the State and the Appellant, who "represents herself," had agreed upon a date for the second restitution hearing.

         On June 30, 2017, the Appellant filed a Uniform Affidavit of Indigency requesting the appointment of counsel for the probation revocation matter. On the form, the Appellant stated that she had a job at Gibco, that she would make $40, 000 per year, that her job "depends on outcome, they have not decided yet"; that she had $50 in her checking account, and that she had a 2012 Ford Focus valued at $7, 000 on which she owed $9, 000. Judge Binkley appointed a public defender to represent the Appellant on the probation revocation proceedings.

         At a July 27, 2018 hearing regarding the probation revocation proceeding, at which Judge Binkley presided, the parties and the court discussed whether Judge Binkley or Judge Woodruff should preside over the probation revocation proceedings. Ultimately, Judge Binkley determined that he would hear the probation ...


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