State v. Ybarra

• Docket Number: 125,606
• Decision Date: 22 December 2023
• Parties: State of Kansas, Appellee, v. Nicolas Paul Ybarra, Appellant.
• Court: Kansas Court of Appeals

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State of Kansas, Appellee,
v.
Nicolas Paul Ybarra, Appellant.

No. 125,606

Court of Appeals of Kansas

December 22, 2023

NOT DESIGNATED FOR PUBLICATION

Appeal from Harvey District Court; MARILYN M. WILDER, judge. Submitted without oral argument. Affirmed.

Charles A. O'Hara, of O'Hara &O'Hara LLC, of Wichita, for appellant.

Ryan J. Ott, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee.

Before WARNER, P.J., GARDNER and HURST, JJ.

MEMORANDUM OPINION

WARNER, J.

Nicolas Ybarra pleaded guilty to aggravated battery, arising from his forcible sexual penetration of a 15-year-old girl. After sentencing, he sought to withdraw his plea, claiming the facts did not show that he caused the girl great bodily harm-an element necessary to prove aggravated battery. The district court found that there was a sufficient factual basis to support his plea and denied his motion. We affirm that decision.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2019, the State charged Ybarra with one count of rape and two counts of aggravated indecent liberties with a child, alleging that Ybarra had engaged in

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nonconsensual intercourse with a 15-year-old girl, committed in May 2018. The details of the events giving rise to these charges were discussed in a probable-cause affidavit filed with the State's complaint.

In the affidavit, a police detective indicated that the girl reported during a forensic interview that Ybarra had raped her during a house party. The girl recalled that Ybarra was at the party with his son and that she had seen Ybarra using methamphetamine. Eventually, the girl got tired and withdrew to her bedroom. She awoke to find Ybarra lying on the bed next to her, stroking his genitals with her hand. Ybarra then pulled the girl's pants off and vaginally penetrated her. The girl stated she was "frozen and paralyzed with fear and disgust" and "didn't move through the ordeal." The girl had never given Ybarra permission to have sex with her, and he had never requested her consent.

The court held a preliminary hearing on the charges, where the girl, Ybarra, and a defense witness testified. The girl's testimony at the preliminary hearing essentially mirrored the account in the affidavit. The district court found there was probable cause to believe Ybarra had committed one count of rape under K.S.A. 2017 Supp. 21-5503(a)(1)(A) and two counts of aggravated indecent liberties with a child under K.S.A. 2017 Supp. 21-5506(b)(1) and (b)(2)(A). The court thus bound Ybarra over for trial.

About two years later, Ybarra entered into a plea agreement with the State. Ybarra agreed to plead guilty to an amended count of aggravated battery under K.S.A. 2017 Supp. 21-5413(b)(1)(A). In exchange, the State would dismiss the remaining charges against him.

The same district judge who had previously presided over Ybarra's preliminary hearing also conducted the hearing on his plea. There, the State recited the main terms of the plea agreement. Ybarra confirmed that the State's recitation was consistent with his understanding of the parties' agreement. The court informed Ybarra of the sentencing

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range associated with the crime of aggravated battery and reviewed the rights Ybarra would be relinquishing through his plea.

The court then inquired about the factual basis for Ybarra's guilty plea. The State offered the affidavit filed in connection with Ybarra's original charges. Ybarra, through counsel, indicated that he had no objection to the court's consideration of the affidavit. The district judge noted that he could recall the preliminary hearing but reviewed the affidavit again anyway. The court then found that there was a factual basis for the plea and, determining that the plea was knowingly, voluntarily, and intelligently made, accepted Ybarra's guilty plea to one amended count of aggravated battery. Ybarra was later sentenced to a 71-month prison term, followed by 36 months of postrelease supervision.

After sentencing, Ybarra moved to withdraw his plea. He asserted that there was not a factual basis to convict him of aggravated battery. See K.S.A. 2022 Supp. 22-3210(a)(4). Ybarra asserted that one of the elements of aggravated battery is that a person has inflicted great bodily harm, but the affidavit used to establish the factual basis for his plea did not mention aggravated battery or great bodily harm at all.

The district court-now a different judge than the ones who presided over the earlier hearings-held a hearing on Ybarra's amended plea-withdrawal motion. At the hearing, the court reviewed the plea-hearing transcript. The court asked Ybarra's attorney why he did not object to the factual basis for the plea at the plea hearing, and the attorney had no explanation. The State argued that the affidavit provided a factual basis for great bodily harm even though it did not use that phrase verbatim because the affidavit stated that Ybarra pulled the girl's pants off and vaginally penetrated her.

The court ultimately denied Ybarra's motion, finding that manifest injustice did not require the plea to be withdrawn because the plea court had...