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State v. Ayala

Court of Appeals of Louisiana, Third Circuit

April 18, 2018

STATE OF LOUISIANA
v.
JOSE ISREAL AYALA, III

          APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 87, 354 HONORABLE VERNON B. CLARK, DISTRICT JUDGE

          Peggy J. Sullivan Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Jose Isreal Ayala, III

          Asa Allen Skinner District Attorney Terry Wayne Lambright First Assistant District Attorney COUNSEL FOR APPELLEE: State of Louisiana.

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders and Van H. Kyzar, Judges.

          VAN H. KYZAR JUDGE

         The Defendant, Jose Isreal Ayala, III, appeals his sentence imposed following a guilty plea to the offense of aggravated escape, entered pursuant to a plea agreement with the State of Louisiana. For the reasons assigned, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On February 3, 2015, the State filed a bill of information charging Defendant with attempted aggravated escape, a violation of La.R.S. 14:110(C) and La.R.S. 14:27, [1] and three companion charges. The charges proceeded under trial court docket number 87, 354. Defendant was also charged under a separate docket number with second degree murder and obstruction of justice, though the matters were not consolidated with the instant case. On April 27, 2017, Defendant entered a plea of guilty pursuant to a plea agreement with the State to aggravated escape in addition to a charge of manslaughter, reduced from an original indictment for second degree murder, and obstruction of justice, in cases proceeding under the other docket number, 86, 777. The three companion charges from the bill of information in docket number 87, 354 that included the aggravated escape charge were dismissed as part of the plea agreement.

The following factual recitation by the prosecutor appears in the record:
BY MR. MASON:
Yes, Your Honor, may it please the court, the State contends that, on or about September 2nd of 2014, Deputy Dalme of the Vernon Parish Sheriffs Office was returning an inmate to S-Cell 1, located at the Vernon Parish Jail at 203 South 3rd Street, Leesville, Vernon Parish, Louisiana. After returning the inmate to his cell, Deputy Dalme proceeded to S-Cell 2 to escort an inmate by the name of "Griffin" to the front office for his nightly glucose check. Upon opening S-Cell 2, defendant, Jose Ayala, struck Deputy Dalme multiple times in the face and intentionally departed from S-Cell 2 and from the custody of Deputy Dalme and ran toward the front of the jail. The defendant, thereafter, entered the main office of the jail and rushed Deputy Tom Scott, who was seated in the office. The defendant then proceeded to yell profanities at Deputy Scott and started striking the deputy on the side of his face and the back of his head using a closed fist. As a result of the attack, Deputy Scott fell from his chair onto the floor, at which time the defendant continued to strike Deputy Scott in the face until Deputy Dalme was able to return to the main office and assist Deputy Scott in pushing the defendant and inmate Griffin out of the office and into the hallway. Once Deputy Dalme returned and was in the office with Deputy Scott, Deputy Dalme observed Jose Ayala with a set of jail keys attempting to open the gate between Bullpen 2 and Bullpen 4. Deputy Dalme yelled commands to the defendant and at Griffin to return to their cells, at which time they retreated slowly. Thereafter, other agents, law enforcement arrived and secured the defendant and the inmate, Griffin, in their cells. As a result of this incident, Deputy Dalme suffered injury and Deputy Scott suffered severe injuries to his face and to his head that resulted in treatment by the hospital and physicians located there. And, Your Honor, also, with regards to this, the State's recitation of facts, the State would also move to incorporate all discovery responses filed by the State and the suit record in its entirety.

         On June 29, 2017, the district court sentenced Defendant to ten years at hard labor for aggravated escape, to be served consecutively to his other sentences and to be served without benefit of parole. A written motion to reconsider sentence was filed on July 7 and denied by the trial court on July 12.[2] Defendant now seeks review of the ten-year sentence imposed herein.[3]

         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 that there is a possible error patent concerning the offense to which Defendant pled guilty and an error patent involving the sentence imposed.

         Defendant was originally charged in this docket number with four counts, all felonies. In the bill of information, Defendant was charged with attempted aggravated escape in "Count 1", that "on or about September 2, 2014, defendant did intentionally attempt to depart from legal custody under circumstances wherein human life was endangered, in violation of R.S. 14:110.C. (Felony)."[4] Defendant indeed understood that charge to be attempted aggravated escape as reflected in a Motion for Preliminary Examination and Bond Reduction wherein he alleged, "The defendant has been charged herein with Attempted Aggravated Escape, Taking Contraband To & From Penal Institutions, two (2) counts Battery of a Correctional Facility and has not been indicted by a Grand Jury." On April 27, 2017, Defendant entered a plea of guilty, pursuant to a plea agreement, to the completed offense of aggravated escape. However, at no time did the State move to amend the bill of information to upcharge Defendant from the original attempt count. While it is clear that a "defendant, with the consent of the district attorney, may plead guilty to a lesser included offense to the offense charged in the indictment" without any formal amendment to the information or indictment as per La.Code Crim.P. art. 558, and that "the district attorney shall not be required to file a new indictment to charge the crime to which the plea is offered" when the defendant pleads to a non-responsive charge as per La.Code Crim.P. art. 487(B), Defendant here pled guilty to the completed offense of aggravated escape, not the lesser included offense, and there was no amendment of the bill of information. While a "trial judge is not without jurisdiction to accept a defendant's knowing and voluntary guilty plea simply because the plea is not responsive to that charged in the bill of information and the district attorney has not amended the bill to conform to the plea" and we are no longer required to view such as an error patent, this does not "alter the fundamental requirement that prosecution be properly instituted by bill of information that informs the accused of the nature of the accusations against him nor does it alter the requirement that a defendant's guilty plea be voluntarily and intelligently made" as a "nonresponsive guilty plea made without an amended bill might raise the concern that a defendant did not understand the nature of the charges against him." State v. Jackson, 04-2863, p. 14 (La. 11/29/05), 916 So.2d 1015, 1023.

         The state of the record herein requires us to ascertain whether Defendant actually entered the plea of guilty to aggravated escape or whether it was intended to be a plea of guilty to the originally charged offense of attempted aggravated escape. The consequence matters greatly here, as the penalty imposed on Defendant was ten years, the maximum sentence for the completed offense, whereas the maximum penalty for an attempted aggravated escape is only five years. La.R.S. 14:27.

         At sentencing, the trial court alluded that Defendant was being sentenced for attempted aggravated escape, stating, "Now, to the, uh, to the sentencing itself, .... In 87, 354, the attempted aggravated escape, while he was incarcerated" and later stated that, "He never did make it out of the jail. Thus, the - the - the -- the charge ~ but it doesn't matter if he did, or not, the simple escape started when he jumped on the deputy and he left that cell without any approval from anyone". Despite this wording, the trial court went on to impose the maximum sentence for aggravated escape. In addition, the minutes of court refer to the original "Count 1" charge in this matter on multiple occasions as simple escape.[5]

         A review of the record from Defendant's plea entered on April 27, 2017 reflects that Defendant in fact pled guilty to the completed offense of aggravated escape after being fully advised of the correct charge and the maximum sentence for the completed charge.

BY THE COURT:
Okay, lastly, under Number 87, 354, the -- the charge of aggravated escape, under Title 14, Section HOC, reads: "Aggravated escape is the intentional departure of a person from the legal custody of any officer of the Department of Public Safety and Corrections or any law enforcement officer or from any place where such person is legally confined when his departure is under ...

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