State of Louisiana v. Jill Tall

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-280

STATE OF LOUISIANA

VERSUS

JILL TALL

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 09-995
HONORABLE LORI A. LANDRY, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and James T.
Genovese, Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

Paula C. Marx
Louisiana Appellate Project
Post Office Box 80006
Lafayette, Louisiana 70598-0006
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Jill Tall

J. Phil Haney
District Attorney Sixteenth Judicial District
Angela B. Odinet, Assistant District Attorney
307 Church Street
St. Martinville, Louisiana 70582
(337) 394-2220
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

In this criminal case, Defendant, Jill Tall, appeals her sentence pursuant to

her plea-generated conviction for first degree vehicular negligent injuring.

Defendant alleges that the trial court abused its discretion in sentencing her to a

maximum sentence and that it imposed overly onerous and impermissible

conditions of probation. For the following reasons, we affirm Defendant‟s

sentence and remand the case to the trial court to either establish a payment plan

for restitution or allow her probation officer to do so, subject to court approval.

FACTS

According to the State‟s factual recitation in the record at the taking of

Defendant‟s guilty plea:

[O]n or about the date alleged in the bill of information, [Defendant]
was operating a motor vehicle whereby she struck Julie Reaux[,] who
was holding her six-month-old son identified as “[G.R.1]” After she
was struck, she dropped her son[,] who subsequently hit his head and
sustained serious bodily injury, particularly, a fracture to his skull
area. She was later made contact with by a responding deputy. She
did submit to a standard field sobriety test and did give indication for
intoxication[,] and she also registered a proper breath sample of point
two zero (0.20) blood alcohol concentration.

At the sentencing hearing, G.R.‟s mother, Ms. Reaux, stated that the child

had two fractures that “„swole‟ up his whole skull [and that if] he didn‟t have the

fractures, his brain right now would be putty[.]” At the time of sentencing,

G.R. was three years old and undergoing tests to evaluate possible further

damages. He was “starting to get his speech tested because he is still babbling.”

Ms. Reaux also sustained injury in the accident. She related that according

to her doctor, her “lower back and [her] leg was [sic] ran over.” She sustained a

fractured ankle and a knee injury and had pre-existing arthritis in her low back and

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The minor victim‟s initials are used pursuant to La.R.S. 46:1844(W).

legs. According to Ms. Reaux, she had to change her educational path and is now

“furthering [her] education to be a medical office assistant so [she] wouldn‟t have

to be on [her] legs so much.” She stated that she is no longer able to enjoy an

athletic lifestyle and cannot even ride a bicycle. She asked the court to impose the

maximum sentence on Defendant.

Defendant, though present at her sentencing, did not testify personally.

Through counsel, she expressed her sincere sorrow for the harm that she caused.

As mitigating factors, Defendant‟s counsel claimed that his client “was trying to

extricate herself from [an] altercation, and . . . she was unaware that anyone was

behind her[,] and she had no idea that she was going to cause the injury or the

accident.” Defendant‟s counsel further stated that Defendant was a single mother

and the sole provider for her four-year-old child, that she had worked her way up

to head cashier at Lowe‟s, and that she would lose her job and be unable to make

meaningful restitution if she were incarcerated.

The trial court pointed out Defendant‟s blood alcohol level was 0.2032 and

commented, “[s]o whether you were trying to extricate yourself from an altercation

or whether you knew you would injure someone is really not the issue. When

you‟re that drunk, we assume you don‟t, and this is what happens. That‟s why it‟s

prohibited.” The trial court also noted Defendant “did the same thing” while she

was awaiting sentencing on this conviction. In addressing Defendant, the trial

court stated that on “July 28, 2011, you were arrested for DWI again[,] and you

blew 0.201.”

While the trial court believed Defendant has “lots of promise,” she also

believed Defendant “continue[s] to have a problem with drinking and driving,” and

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According to La.R.S. 14:98(A.)(1), “[t]he crime of operating a vehicle while intoxicated
is the operating of any motor vehicle . . . when . . . (b) [t]he operator‟s blood alcohol
concentration is 0.08 percent or more . . . .”
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“the dangerous behavior has not corrected itself.” The trial court also stated that

she did not “believe [Defendant‟s] drinking and driving started in 2009” and that

she was sentencing Defendant “for the fact that [she was] involved in a very

volatile situation and drinking and driving” and caused “major injury to this young

baby and his mother.”

PROCEDURAL HISTORY

On May 21, 2009, Defendant was charged with two counts of first degree

vehicular negligent injuring, violations of La.R.S. 14:39.2, and hit and run driving,

a violation of La.R.S. 14:100(C)(2). On July 7, 2010, she signed a certificate

outlining her open-ended plea agreement to one count of first degree vehicular

negligent injuring and pled guilty to that offense.

At the plea hearing on July 7, 2011, Defendant told the trial court that she

understood the statute under which she was charged, the definition of “serious

bodily injury” contained in it, and the possible sentence for the offense. The trial

court then ordered a presentencing investigation (PSI) and subsequently sentenced

Defendant on September 28, 2011, to serve five years at hard labor, with all but

one year suspended, and with supervised probation for three years. The trial court

also imposed the following special conditions:

1) pay a fine of $2,000.00 plus cost of court over the course of probation on a
schedule set by the probation officer;

2) pay $500.00 to the District Attorneyʼs office for cost of prosecution;

3) pay $500.00 to the Indigent Defender Board for representation of defendant
over the course of probation;

4) within seven days of signing up for probation, Defendant is to take all the
necessary steps to complete a Substance Abuse Evaluation and follow all
recommendations for treatment;

5) attend two AA/NA meetings for every week on probation;

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6) within seven days of signing up for probation, Defendant is to take all
necessary steps to complete a Mental Health Evaluation and follow all
recommendations for treatment;

7) pay restitution in the amount of $7,256.02 to be paid over the course of
probation on a schedule set by the probation officer;

8) within ninety days of Defendant signing up for probation, either the defense
or the State has the right to have a restitution hearing set and traverse the amount
based on an increase or decrease;

9) Defendant is not to drink or involve herself with any illicit drugs or drug
abusers;

10) Defendant is not to go to bars or casinos during probation, anywhere alcohol
is the main source of business;

11) complete forty, eight-hour days of community service while on probation;

12) pay for and complete one MADD Impact Panel;

13) Defendant is prohibited from driving a vehicle while on probation unless the
vehicle is outfitted with an ignition interlock device;

14) within seven days, sign up and complete a Driver Improvement Program
within the first six months of signing up for probation;

15) install an ignition interlock device on vehicle before Defendant is able to
drive and provide proof to the Department of Corrections of the installation; and,

16) Defendant is given credit for time served awaiting disposition of sentence.

The trial court also specifically noted that three weeks after entering her guilty

plea, but before her sentencing, Defendant was arrested on July 28, 2011, in

Calcasieu Parish on a driving while intoxicated charge wherein “[s]he blew 0.201”

in her breath test.

Defendant filed a motion to reconsider her sentence on November 7, 2011.

That motion was denied on November 18, 2011, without a hearing. Defendant has

appealed her sentence.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find there is

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an error patent regarding the conditions of probation. Additionally, there is an

error patent regarding restitution, which will be discussed in assignment of error

number five.

At sentencing, the trial court stated in pertinent part:

So it‟s the sentence of this [c]ourt, ma‟am, that you serve five
years hard labor. I‟ll suspend all but one. Thereafter, I place you on
three years active supervised probation with the Department of
Corrections, all the usual conditions of probation, the following
special: That you pay a fine of two thousand dollars ($2,000.00) plus
court costs over the course of probation on a schedule set by the
probation officer, you pay two hundred and fifty dollars ($250.00) to
the -- five hundred dollars ($500.00) to the District Attorney‟s Office
for their costs of prosecution, five hundred dollars ($500.00) to the
PDO for their representation of you over the course of probation.
Within seven days[,] sign up for probation, ma‟am.

In State v. Stevens, 06-818, p. 3 (La.App. 3 Cir. 1/31/07), 949 So.2d 597,

599-600, this court stated:

[W]e find nothing in the statute which prohibits the trial court from
seeking assistance from outside sources, including Probation and
Parole, in formulating the appropriate payment plan. In fact,
Probation and Parole may be in a better position to formulate a
workable payment schedule than is the trial court. In taking
advantage of this assistance, the trial court in no way cedes its
responsibility to impose the payment plan, and it only becomes
effective upon approval of the trial court.

In the instant case, the trial court ordered that Defendant‟s payment plan for

the fines and costs be formulated on a schedule set by a probation officer, but

without approval by the trial court. Though the trial court may delegate the

establishment of a payment plan to a probation officer, if that is in fact done, it

must be done with court approval. State v. Mayes, 07-1500 (La.App. 3

Cir. 4/30/08), 982 So.2d 265, writ denied, 08-1175 (La. 2/6/09), 999 So.2d 768.

Accordingly, we remand this case to the trial court with the instruction that either a

payment schedule for fines and costs be formulated by the trial court, or else that

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the trial court permit a payment schedule to be formulated by the probation officer,

subject to approval by the trial court.

ASSIGNMENTS OF ERROR

In her appeal, Defendant presents the following five assignments of error:

I. The trial court abused its discretion in sentencing Jill Tall to a
maximum sentence for First Degree Vehicular Negligent Injuring,
when the record does not support a finding that Ms. Tall was the worst
type of offender, or that the accident, while tragic, was not the worst
offense.

II. The trial court erred in imposing conditions of probation that are
too onerous and not reasonably related to rehabilitation.

III. Attendance at two AA or NA meetings regardless of the outcome
of a substance abuse evaluation violates Louisiana statutory
requirements set forth in [La.Code Crim.P.] art. 895[] and Appellant‟s
right to fundamental fairness required by the Fourteenth Amendment.

IV. The trial court erred in prohibiting Jill Tall from driving a vehicle
during the entirety of her probation unless the vehicle is outfitted with
an ignition interlock device.

V. The trial court erred in ordering an amount of restitution which is
subject to change. The trial court further erred in allowing the
probation officer to set up the schedule for payment of that restitution.

ASSIGNMENT OF ERROR NUMBER ONE:

Defendant argues the trial court abused its discretion in sentencing her to a

maximum sentence when the record does not support a finding that she is the worst

type of offender or that the accident, while tragic, was the worst offense. In this

assignment of error, she also claims that the $2,000.00 fine is excessive.

We note, however, that the fine was actually imposed as a condition of

probation, not actually as part of Defendant‟s sentence. Therefore, we will address

the issue of the fine in our discussion of the alleged onerous probationary

conditions under Assignment of Error Number Two.

This court has previously discussed the standard for reviewing excessive

sentence claims:

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[Louisiana Constitution Article 1], ' 20 guarantees that, “[n]o
law shall subject any person to cruel or unusual punishment.” To
constitute an excessive sentence, the reviewing court must find the
penalty so grossly disproportionate to the severity of the crime as to
shock our sense of justice or that the sentence makes no measurable
contribution to acceptable penal goals and is, therefore, nothing more
than a needless imposition of pain and suffering. The trial court has
wide discretion in the imposition of sentence within the statutory
limits and such sentence shall not be set aside as excessive absent a
manifest abuse of discretion. The relevant question is whether the
trial court abused its broad sentencing discretion, not whether another
sentence might have been more appropriate.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d

1035, 1042, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331 (citations omitted).

According to La.R.S. 14:39.2(D), a conviction of first degree vehicular

negligent injuring requires that the offender “shall be fined not more than two

thousand dollars or imprisoned with or without hard labor for not more than five

years, or both.” Therefore, the term of imprisonment ordered by the sentencing

court is the maximum allowable under the statute.

Even though a penalty falls within the statutory sentencing range, it may still

be unconstitutionally excessive:

In deciding whether a sentence is shocking or makes no
meaningful contribution to acceptable penal goals, an appellate court
may consider several factors including the nature of the offense, the
circumstances of the offender, the legislative purpose behind the
punishment and a comparison of the sentences imposed for similar
crimes. While a comparison of sentences imposed for similar crimes
may provide some insight, “it is well settled that sentences must be
individualized to the particular offender and to the particular offense
committed.” Additionally, it is within the purview of the trial court to
particularize the sentence because the trial judge “remains in the best
position to assess the aggravating and mitigating circumstances
presented by each case.”

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ

denied, 03-562 (La. 5/30/03), 845 So.2d 1061 (citations omitted). “[T]he trial

judge need not articulate every aggravating and mitigating circumstance outlined

in art. 894.1[;] the record must reflect that he adequately considered these

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guidelines in particularizing the sentence to the defendant.” State v. Smith, 433

So.2d 688, 698 (La.1983). “[M]aximum sentences are reserved for cases involving

the most serious violations of the charged offense and for the worst kind of

offender.” State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982). “The appellate

court shall not set aside a sentence for excessiveness if the record supports the

sentence imposed.” La.Code Crim.P. art. 881.4(D).

First degree vehicular negligent injuring is a very serious offense that, in this

case, resulted in very serious injury to two people. G.R.‟s injuries were

life-threatening and potentially life-changing. His mother‟s injuries were very

serious as well. Defendant has presented some mitigating factors in seeking a

lesser sentence. Nevertheless, she placed herself in the situation that led to these

injuries when she knew she had been drinking a considerable amount of alcohol.

Then, after she pled guilty, but before she was sentenced in this case, she again

drove when she knew she had been drinking a large amount of alcohol. These

circumstances indicate that Defendant‟s experience in this case has not impressed

her sufficiently enough to change her illegal behavior.

This court, quoting the trial court, noted in State v. Morain, 07-1207, p. 4

(La.App. 3 Cir. 4/2/08), 981 So.2d 66, 69, “[t]here are terrible consequences when

you choose to drink and drive.” The trial court found the Morain defendant “had

to know the consequences of his decision to drink and drive” “[b]ased upon his life

experiences” as a former police officer. Id.

In State v. Cozzetto, 07-2031 (La. 2/15/08), 974 So.2d 665, the defendant‟s

vehicle collided with another vehicle, injuring a woman and causing significant

injuries, including a broken leg. The defendant fled the scene but was soon

apprehended. His blood alcohol level was above the legal limit. He pled guilty to

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first degree vehicular negligent injuring and hit-and-run charges, and his traffic

violations were dismissed.

The second circuit found the defendant‟s maximum sentence of five years at

hard labor to be excessive based on “only one prior” DUI charge to which the

defendant pled guilty to reckless operation. It found the maximum sentence was

historically reserved for “cases where the defendant had a significant history of

similar prior offenses and where there was evidence of life-altering, serious or

disabling injury to the victims.” State v. Cozzetto, 42,259, p. 7 (La.App. 2

Cir. 8/15/07), 962 So.2d 1225, 1230.

The Louisiana Supreme Court did not agree with the second circuit‟s factual

assessment. The trial court correctly found the defendant fled the scene because of

his “extreme intoxication” and thereby “placed himself among the most

blameworthy offenders.” Cozzetto, 974 So.2d at 666. Based on the defendant‟s

blood alcohol level of 0.23, a prior offense resulting from excessive alcohol use,

and the victim‟s injuries, the supreme court held the second circuit “did not

provide an adequate basis for substituting its judgment as to an appropriate

sentence for that of the trial judge.” Id. The supreme court reinstated the

maximum sentence.

Here, the record indicates that Defendant had no prior felony convictions.

The trial court considered the “major injur[ies] to this young baby and his mother”

and found that Defendant placed herself “in a very volatile situation and drinking

and driving.” The accident occurred because Defendant chose to drink and drive,

and she did the same thing again after she caused these serious injuries. While

Defendant has no felony record, we find her actions to be egregious and to justify

the imposition of a maximum sentence.

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We also point out that Defendant received a substantial benefit as a result of

her guilty plea. Defendant pled guilty to only one of two counts of first degree

vehicular negligent injuring, though clearly two people were seriously injured as a

result of her actions. The charge of hit-and-run driving carried a potential

sentencing exposure of up to ten years in prison with or without hard labor and/or a

fine of up to five thousand dollars. La.R.S. 14:100(C)(2). This charge was

dismissed when Defendant entered her open-ended plea. Four years of her

five-year sentence for first degree vehicular negligent injuring were suspended.

Provided Defendant abides by and successfully completes the terms and conditions

of her probation, she will spend only twenty percent of her sentence in custody.

Accordingly, we find that a thorough review of the facts and circumstances

in the record of this case clearly indicates that the trial court did not abuse its wide

sentencing discretion in imposing the maximum sentence for Defendant with all

but one year suspended and three years of supervised probation.

ASSIGNMENT OF ERROR NUMBER TWO:

Defendant contends the trial court erred in imposing conditions of probation

that are “too onerous and not reasonably related to rehabilitation.” She claims the

requirements to attend two AA or NA meetings every week while on probation,

perform forty eight-hour days of community service, complete a driver

improvement program, complete one MADD impact panel, and pay the fine, costs,

and fees imposed are so onerous that they “destine her for failure.” We disagree.

In addressing Defendant‟s claim that her conditions of probation are “too

onerous and not reasonably related to rehabilitation,” it is important to remember

the nature of Defendant‟s offense. Defendant was not merely intoxicated; her

blood alcohol level was more than two-and-one-half times the legal limit. She

caused serious, life-threatening injuries that will affect two victims for the rest of

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their lives. After she pled guilty to the first degree vehicular negligent injuring of

these victims, she was caught drinking and driving again and once more showed a

blood alcohol level two-and-one-half times the legal limit. It is likely that

Defendant may well benefit from attending two AA or NA meetings per week

during her probationary period and completing a driver improvement program and

a MADD impact panel. These requirements are rehabilitation-related and not

excessive.

As to the fine, costs, and fees, we note that Defendant will have three years

during her probation to pay these assessments and satisfy these obligations. The

$2,000.00 fine is within the sentencing parameters, and the fees and costs are not

disproportionate or statutorily impermissible. Again, we emphasize the fact that

Defendant received a substantial benefit as a result of her guilty plea to only one of

two counts of first degree vehicular negligent injuring, four of the five years of the

maximum sentence for that conviction were suspended, and her felony hit-and-run

charge was dismissed. Defendant argues that the conditions of her probation

“destine her for failure.” It is Defendant herself who is in charge of her destiny.

We find no error by the trial court in the imposition of the conditions of

Defendant‟s probation.

ASSIGNMENT OF ERROR NUMBER THREE:

According to Defendant, attendance at two AA or NA meetings regardless

of the outcome of a substance abuse evaluation violates statutory requirements of

La.Code Crim.P. art. 895 and her right to fundamental fairness required by the

Fourteenth Amendment. She claims that the fact of the presence of alcohol does

not make her an alcoholic, and she should not be treated like an alcoholic without

an evaluation. Defendant cites no legal authority for this theory other than to argue

that the trial court may not order a condition of probation not reasonably related to

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her rehabilitation, and the attendance at meetings constitutes unconstitutional cruel

and unusual punishment.

As discussed in Assignment of Error Number Two, we find that attendance

at meetings, even in absence of a substance abuse evaluation, seems particularly

geared toward Defendant‟s rehabilitation. Thus, under the facts and circumstances

of this case, we find that an evaluation is not necessary to find that Defendant may

derive great benefit from attendance at these meetings, and such attendance is

closely related to her rehabilitation.

ASSIGNMENT OF ERROR NUMBER FOUR:

Defendant argues the trial court erred in prohibiting her from driving a

vehicle during the entirety of her probation unless the vehicle is outfitted with an

ignition interlock device. She contends that the statute under which she was

convicted, La.R.S. 14:39.2, makes no provision for the requirement of an interlock

device; thus, the trial court erred in ordering the device as a condition of her

probation.

We note, however, that La.R.S. 32:378.2 specifically authorizes a trial court

to impose the use of an interlock device in DWI cases. While the instant case is

not a DWI case per se, it is undisputed that Defendant was operating her vehicle

while under the influence of alcohol with a blood alcohol content over

two-and-one-half times the legal limit. Though that statute does not extend that

power to the trial court in cases involving La.R.S. 14:39.2, it does not withhold that

authority, either. We find that the omission of a provision for an interlock device

from La.R.S. 14:39.2 does not prohibit the trial court from requiring one for those

convicted under that statute. Accordingly, we find that the trial court did not err in

ordering the installation of an interlock device as a condition of Defendant‟s

probation.

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ASSIGNMENT OF ERROR NUMBER FIVE:

Defendant contends the trial court erred in ordering an amount of restitution

which is subject to change and in allowing the probation officer to set up the

payment schedule of that restitution. She argues the result is an indeterminate

sentence because of the “delay in the finality of the restitution order.”

The trial court ordered Defendant to pay restitution in the amount of

$7,256.02 “to be paid over the course of probation on a schedule set by the

probation officer.” She offered both parties the opportunity to oppose the amount

stating, “I will say[,] within 90 days of first signing up for probation, either the

defense or the State has a right to have a restitution hearing set and traverse the

amount based on an increase or decrease depending on what you later come to

know.”

We find that the trial court set “an amount certain” as required by La.Code

Crim.P. art. 895.1. Defendant knows she is presently required to pay $7,256.02 in

restitution. The only way that figure or amount will change is if Defendant or the

State asks for a hearing within ninety days of first signing up for probation. If the

amount changes at that time, Defendant will have an amended “amount certain.”

However, La.Code Crim.P. art. 895.1(A)(1) requires the restitution payment

to be “made, in discretion of the court, either in a lump sum or in monthly

installments based on the earning capacity and assets of the defendant.” The trial

court ordered Defendant‟s restitution “to be paid over the course of probation on a

schedule set by the probation officer,” without specifying a payment plan.

As discussed in the Errors Patent section above, assigning the formulation of

the payment plan to a probation officer without a provision for court approval

constitutes error. Therefore, we remand this case to the trial court with the

instruction that either the trial court establish a restitution payment schedule or else

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permit the probation officer to establish a restitution payment schedule, subject to

approval by the trial court.

DISPOSITION

Defendant‟s sentence and duly imposed conditions of probation are

affirmed. This case is remanded to the trial court with the instruction that either

the trial court establish a schedule of payment for the fines, fees, and restitution, or

else permit the probation officer to establish same, subject to approval by the court.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

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