                                                                                         10/22/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 May 15, 2019 Session

      STATE OF TENNESSEE v. NATHANIEL DAVID LABRECQUE

                Appeal from the Criminal Court for Davidson County
                  No. 2017-B-1443    Amanda McClendon, Judge


                            No. M2018-01587-CCA-R3-CD


The Defendant, Nathaniel David Labrecque, pleaded guilty to two counts of failure to
yield the right of way causing serious bodily injury. See T.C.A. §§ 55-8-129, 55-8-
197(a)(3) (2018). He received an effective sentence of six months’ incarceration, and the
trial court ordered the Defendant to pay restitution in the amount of $500,000. On
appeal, the Defendant contends that the trial court erred by (1) ordering restitution
without assessing his ability to pay and (2) ordering restitution when there was no
evidence substantiating the victims’ losses. We affirm the Defendant’s convictions, but
we reverse the trial court’s restitution order and remand for entry of amended judgments.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
                Case Remanded for Entry of Amended Judgments

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which Camille R.
MCMULLEN, J., joined. NORMA MCGEE OGLE, J., filed an opinion concurring in part and
dissenting in part.

Ryan C. Davis, Nashville, Tennessee, for the appellant, Nathaniel David Labrecque.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Senior
Assistant Attorney General; Glenn R. Funk, District Attorney General; and Ross M.
Boudreaux, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

        This case arose following a motor vehicle collision involving the Defendant and
the victims, Lovell and Jacqueline Conner. The Davidson County grand jury indicted the
Defendant for two counts of failure to yield the right of way resulting in serious bodily
injury, one count for each victim, and one count of driving on a revoked license. On June
21, 2018, the Defendant pleaded guilty to the two counts of failure to yield, and the State
dismissed the driving on a revoked license charge. Following a sentencing hearing on
August 9, 2018, the Defendant received an effective sentence of six months’
incarceration and was ordered to pay $500,000 in restitution. Additionally, his driving
privileges were revoked for six months.

        During the Defendant’s guilty plea hearing, the prosecutor stated that the proof
would have established that on July 28, 2016, the Defendant was involved in a motor
vehicle collision with Mr. and Ms. Conner. Ms. Conner was driving, and Mr. Conner
was seated in the front passenger seat. The Defendant made a left turn and drove into the
Conners’ car, which had the right of way. Ms. Conner “hit the brakes” of her car but was
unable to prevent the Defendant’s car from colliding with hers. The Defendant’s driver’s
license was revoked at the time. The Conners suffered serious injuries as a result of the
collision.

       At the sentencing hearing, Officer Jessie Meadows testified that on July 28, 2016,
he responded to a motor vehicle collision involving two cars: one driven by the
Defendant and one driven by Ms. Conner. Officer Meadows said that the Defendant had
turned left without seeing the victims’ car and hit the victims’ car at an angle. Officer
Meadows explained that the victims were conscious but that both were injured. Officer
Meadows determined that the Defendant did not have a valid driver’s license. Officer
Meadows stated that the Defendant was not intoxicated and was not cited for reckless
driving. Officer Meadows said that the collision was the Defendant’s fault.

       Lovell Conner testified that on July 28, 2016, he was a passenger in his wife’s car.
He said that he was age seventy-two and that, before the collision, he had enjoyed an
active lifestyle with no pain or physical limitations. Mr. Conner said that they were
going home from lunch when he saw the Defendant’s car coming from the opposite
direction in the left turn lane. Mr. Conner explained that the Defendant’s car swerved out
of the turn lane and collided with the victims’ car. Mr. Conner did not believe that the
Defendant intentionally drove into the Conners’ car but said the Defendant was reckless.
Mr. Conner said that he had head injuries and suffered two broken legs, which required
multiple surgeries. Mr. Conner was hospitalized and later spent 100 days in
rehabilitation, where he relearned to walk. Mr. Conner stated that one of his sons quit his
job and moved in with the Conners to help them while they recovered from their injuries
and that he paid his son’s bills throughout the duration of his stay. Mr. Conner explained
that he was retired and lived on a fixed income and that he and his wife had incurred at
least $170,000 in medical bills. He said that he was not sure if there was any outstanding
debt because Ms. Conner was responsible for their finances. He said that he would need
help with physical tasks for the rest of his life and that his condition would not improve
over time.




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        Jacqueline Conner testified that she was age sixty-eight. She said that on July 28,
2016, she was injured in a motor vehicle collision involving the Defendant. Ms. Conner
explained that before the collision, she and Mr. Conner were healthy and enjoyed an
active lifestyle. Ms. Conner explained that she was driving home when the Defendant’s
car hit her car. Ms. Conner said that she was treated for fractured vertebrae and abrasions
to her chest. Ms. Conner said that she and Mr. Conner suffered financial stress because
of the collision and stated that her husband’s medical bills were in excess of $500,000.

        The Defendant testified that he was involved in the motor vehicle collision with
the Conners. He conceded that he failed to yield to oncoming traffic, causing the
collision. The Defendant explained that he was not intoxicated at the time. He said that
he was in a hurry, misjudged the speed of the Conners’ car, and pulled out of his lane.

       The Defendant testified that he had a history of difficulty maintaining full-time
employment because he did not have a driver’s license. The Defendant said that his first
conviction for driving on a revoked license was in 2006 and that he had multiple
convictions for driving on a revoked license since. He said that he had not tried to get a
valid driver’s license because he could not afford it. The Defendant said that he had
attempted to pay fines and court costs related to his revoked license. He said it was
difficult to make payments because he had trouble maintaining employment when he did
not have transportation. The Defendant had been in jail for thirty days before the
sentencing hearing, which made it more difficult to obtain employment. The Defendant
said that, before his incarceration, he worked at a sawmill for two months. The
Defendant had additional pending criminal charges. The Defendant was uncertain about
when he would be able to secure full-time employment.

       In determining the Defendant’s sentence, the trial court stated that the victims’
injuries were the worst she had seen during her twelve-year tenure as a judge. The court
applied two enhancement factors based upon the Defendant’s criminal history related to
driving on a revoked license and upon the vulnerability of the victims given their age.
The court ordered the Defendant to pay $500,000 in restitution, reasoning that the
Defendant’s actions were a willful disregard for “life, limb[,] and property.” The court
found that based on the Defendant’s actions, it was foreseeable that he could injure
someone. The court acknowledged that the Defendant would not be able to pay this
amount while incarcerated but stated that the restitution order would convert to a civil
judgment after he served his six-month sentence. This appeal followed.

        The Defendant contends that the trial court improperly ordered the Defendant to
pay restitution (1) because he did not have the ability to pay and (2) because the State
failed to present proof of the victims’ losses. The State concedes that the trial court erred
in disregarding the Defendant’s ability to pay the restitution. The State argues that a new
hearing should be held to determine the Defendant’s financial resources in order for the
court to determine an appropriate restitution amount. The State argues that the

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Defendant’s second issue should be pretermitted because of the State’s concession that
the trial court improperly ordered the Defendant to pay $500,000 in restitution. The
Defendant responds that a new hearing is not warranted to determine whether restitution
is appropriate because the trial court has already found that the Defendant was indigent.
Additionally, the Defendant argues that a new hearing is moot because the Defendant’s
sentence has expired and that the trial court does not have the authority to enforce any
modification of restitution.

        As relevant here, any person who fails to yield the right-of-way as provided in
Tennessee Code Annotated section 55-8-129 and “the violation results in serious bodily
injury to . . . any person shall be guilty of a [Class B] misdemeanor.” T.C.A. § 55-8-
197(a)(3), (c)(1). For the purposes of this statute, serious bodily injury means
“substantial risk of death[,]” “serious disfigurement[,]” or “protracted loss or impairment
of the function of any bodily member, organ or mental faculty.” Id. § 55-8-197(b)(1)-(3).

        A defendant convicted of a felony or misdemeanor may be ordered to pay
restitution to the victim or victims in conjunction with a sentence of continuous
confinement in a local jail, workhouse, or department of correction. T.C.A. § 40-35-
104(a), (c)(2), (6), (8) (2014); see id. § 40-35-304(a) (2014). The amount is determined
based on “the nature and amount of the victim’s pecuniary loss.” Id. § 40-35-304(b).
“Pecuniary loss,” in the context of this section, means “[a]ll special damages . . . as
substantiated by evidence in the record or as agreed to by the defendant” and
“[r]easonable out-of-pocket expenses incurred by the victim resulting from the filing of
charges or cooperating in the investigation and prosecution of the offense[.]” Id. § 40-35-
304(e)(1)-(2). At the time of the sentencing hearing, the court shall specify “the amount
and time of payment . . . to the victim and may permit payment . . . in installments.” Id. §
40-35-304(c). The court may not establish a payment “schedule extending beyond the
statutory maximum term of probation supervision that would have been imposed for the
offense. T.C.A. § 40-35-304(c). “The court shall consider the financial resources and
future ability of the defendant to pay” in determining restitution. Id. § 40-35-304(d).
Moreover, “upon expiration of the time of payment or the payment schedule imposed . . .
, if any portion of restitution remains unpaid, then the victim or the victim’s beneficiary
may convert the unpaid balance into a civil judgment[.]” Id. § 40-35-304(h)(1).

        The record reflects, and the State concedes, that the trial court failed to consider
the Defendant’s financial resources and ability to pay in its restitution determination. See
State v. Comer, 278 S.W.3d 758 (Tenn. 2008) (holding that, in determining restitution,
the sentencing court must consider a defendant’s financial resources and ability to pay);
see also State v. Lane, 254 S.W.3d 349, 353 (Tenn. 2008) (holding that the failure to
consider a defendant’s financial ability to pay restitution was a “plain and palpable abuse
of discretion[.]”) The Defendant testified that he had been incarcerated for one month
before the hearing, was not employed, and had not held steady employment in years. The
Defendant stated that he had difficulty maintaining employment because he did not have

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a valid driver’s license. He also stated that he could not afford to have his driver’s
license reinstated. The record does not reflect that the trial court discredited this
testimony. In addition, the Defendant’s sworn affidavit of indigency in the record
reflects that the Defendant had no vehicles, real estate, or other assets and had no income.
Moreover, the trial court ordered the Defendant to serve his entire six-month sentence
incarcerated, and the Defendant also faced additional pending criminal matters. The
Defendant stated that given his incarceration and unresolved criminal matters, he was
unsure when he would be able to obtain employment. The Defendant was determined to
be indigent in September 2017. The trial court acknowledged that the Defendant would
not be able to pay restitution.

        The record reflects that the Defendant did not have the financial resources to pay
$500,000 restitution, and his future ability to pay restitution was uncertain. A new
hearing is not necessary to determine the Defendant’s financial resources or future ability
to pay because there was sufficient evidence at the sentencing hearing from which the
trial court could have made that determination. See State v. Keisha M. Howard, No.
E2011-00598-CCA-R3-CD, 2012 WL 3064653, at *11 (Tenn. Crim. App. July 30, 2012)
(reducing the amount of restitution the defendant was required to pay after concluding
that the record contained sufficient evidence to determine the victim’s loss but that the
record did not support the trial court’s calculation of the victim’s loss). The trial court
did not discredit the Defendant’s testimony. The trial court abused its discretion in
setting restitution at $500,000 without properly considering the Defendant’s financial
resources and future ability to pay. Because the record reflects that the Defendant is
indigent and has poor prospects of future employment, the restitution order is reversed
and the case is remanded to the trial court for the entry of amended judgments reflecting
no restitution.

       Based upon the foregoing and the record as a whole, the trial court’s restitution
order is reversed, and the case is remanded for entry of amended judgments consistent
with this opinion.




                                      ____________________________________
                                      ROBERT H. MONTGOMERY, JR., JUDGE




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