State v. Tall

100 So. 3d 388, 12 La.App. 3 Cir. 280, 2012 La. App. LEXIS 1319, 2012 WL 5237884
CourtLouisiana Court of Appeal
DecidedOctober 24, 2012
DocketNo. 12-280
StatusPublished
Cited by1 cases

This text of 100 So. 3d 388 (State v. Tall) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tall, 100 So. 3d 388, 12 La.App. 3 Cir. 280, 2012 La. App. LEXIS 1319, 2012 WL 5237884 (La. Ct. App. 2012).

Opinion

GENOVESE, Judge.

Bln 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 oner[391]*391ous 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:

[0]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 preexisting arthritis in her low back and l2legs. 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 [392]*392that 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 “eontinue[s] to have a problem with drinking and driving,” and 13“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(0(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 Attorney’s 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;
146) 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 [393]*393and provide proof to the Department of Corrections of the installation; and,
16) Defendant is given credit for time served awaiting disposition of sentence.

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Cite This Page — Counsel Stack

Bluebook (online)
100 So. 3d 388, 12 La.App. 3 Cir. 280, 2012 La. App. LEXIS 1319, 2012 WL 5237884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tall-lactapp-2012.