State v. Segura
| Decision Date | 23 November 2022 |
| Docket Number | 125,074 |
| Parties | State of Kansas, Appellee, v. Frankie U. Segura Jr., Appellant. |
| Court | Court of Appeals of Kansas |
NOT DESIGNATED FOR PUBLICATION
Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett district attorney, and Derek Schmidt, attorney general, for appellee.
Before HURST, P.J., MALONE and BRUNS, JJ.
Frankie U.Segura Jr. pled guilty to attempted rape, attempted aggravated criminal sodomy, aggravated assault, kidnapping and burglary as part of a plea agreement with the State. Although the district court granted Segura's request for a downward durational departure, it denied his request for a dispositional departure to probation. On appeal, Segura contends that the district court abused its discretion in finding that a dispositional departure was not warranted in this case. Based on our review of the record, we find that the district court's decision regarding Segura's request for a dispositional departure was reasonable. Thus we affirm.
Segura was charged in Sedgwick County District Court with one count of rape, two counts of aggravated criminal sodomy, one count of aggravated assault, one count of kidnapping, and one count of aggravated burglary. He subsequently entered into a plea agreement with the State in which he agreed to plead guilty to reduced charges pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). At the time the parties entered into the plea agreement, they believed that Segura's criminal history would be scored as a G.
At the plea hearing, the State proffered the following facts: The victim, K.S., was a neighbor of Segura's girlfriend. On July 14, 2018, Segura-who was intoxicated- entered K.S.'s apartment without permission. Segura then held K.S. captive in her apartment for nearly 30 hours. While in the apartment, Segura held a knife to K.S.'s throat and threatened to kill her. He attempted to commit aggravated criminal sodomy on K.S. using his penis but failed to complete the act of sodomy. He also attempted to rape K.S. with his penis but was unable to complete the act of rape. He then attempted to commit aggravated criminal sodomy on K.S. with his fingers but failed to complete the act of sodomy. Eventually K.S. was able to signal to neighbors, who called the police and were able to secure her release.
After the district court advised Segura of his rights and completed a colloquy with him to determine that his plea was voluntary, it accepted his Alford plea and found him guilty of attempted rape, two counts of attempted aggravated criminal sodomy, aggravated assault, kidnapping, and burglary. Later, it was discovered during the preparation of Segura's presentence investigation (PSI) report that his criminal history score was actually A rather than G. In response, Segura then filed a motion seeking a durational or dispositional departure.
At the sentencing hearing, the State recommended that the district court grant Segura a durational departure to 154 months in prison. In doing so, the State noted that this sentence would be consistent with the understanding of the parties regarding Segura's criminal history at the time the plea agreement was entered into. The State further indicated that it still felt this would be an appropriate sentence. However, given the violent nature of the crimes Segura committed in this case, the State asked that the district court deny Segura's request for a dispositional departure to probation.
In light of the age and nature of Segura's prior convictions, the district court found substantial and compelling reasons justifying a durational departure existed. However, due to "[t]he nature of [this] case itself, the violence that was inflicted, and the harm that was inflicted on the victim," the district court found that there were not substantial and compelling reasons to support a dispositional departure. Accordingly, the district court sentenced Segura to 151 months in prison.
The sole issue presented on appeal is whether the district court abused its discretion in denying Segura's request for a dispositional departure. In reviewing a district court's decision regarding a motion to depart, we first examine the record to determine if the district court's...
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