A 43-year-old Hutchinson man convicted of attempted rape was granted community corrections over the strong opposition from the state because the crime is presumptive prison.

Judge Joe McCarville found there was substantial and compelling reasons to depart from sentencing guidelines and granted Larry Frye Jr., 36-months community corrections on a 59-month underlying sentence.

Defense Attorney Alice Osburn cited the fact that Frye is mentally retarded, therefore lacked judgment in making decisions including that early morning. She says, he has the I-Q of a sixth grader. She says according to an evaluation, he is a low to moderate risk of repeating this type of offense. She also told of his lack of criminal history and that he’s already served a substantial amount of time in the Reno County Jail, having been there since his arrest back on January 4.

But, Senior Assistant District Attorney Steve Maxwell argued against corrections saying he has already been given a break when he was allowed to enter a plea to “attempted rape” as opposed to “rape” which he says is what actually occurred in this case. Maxwell doesn’t believe his low I-Q or lack of criminal history is a substantial and compelling reason to grant a departure

In handing down the sentence, Judge McCarville agreed with the defense that his low I-Q, and also the length in jail were factors. He agreed that the defendant lacked capacity for judgment and granted the downward departure.

Frye will have to register as a sex offender for the rest of his life, as well as attend a sex offender treatment program.

He raped a 27-year-old Hutchinson woman, but entered a “guilty” plea to an amended charge of attempted rape as part of a plea agreement with the state.

The rape occurring on New Years Day at a home here in Hutchinson. The case starts with the victim going to Hutchinson Regional Medical Center for treatment after the incident and hospital officials contacted police. The victim didn’t know Frye, with her roommate apparently bringing him to the home. It was early morning on New Years Day when the alleged encounter occurred. The victim was intoxicated and woke up with the strange man on top of her.

Frye told the court today that he had his clothes on when this occurred. He told the judge that only thing he took off was his shoes. The victim did not attend the hearing Thursday.