Cannaday v. Commonwealth

• Decision Date: 09 November 2022
• Docket Number: Record No. 0810-21-3
• Parties: David Brandon CANNADAY v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

75 Va.App. 707

879 S.E.2d 604

David Brandon CANNADAY

v.COMMONWEALTH of Virginia

Record No. 0810-21-3

Court of Appeals of Virginia, Lexington.

November 9, 2022

Fred D. Smith, Jr. (Fred D. Smith, Jr., P.C., on briefs), Martinsville, for appellant.

John Beamer, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Chaney, Callins and Senior Judge Petty

OPINION BY JUDGE DOMINIQUE A. CALLINS

David Brandon Cannaday appeals his sentence imposed for possession of over 100 grams of methamphetamine with intent to distribute under Code § 18.2-248(H)(5). On that conviction, the trial court sentenced Cannaday to forty years, of which he was to serve the mandatory minimum incarceration period of twenty years as required by Code § 18.2-248(H)(5) for a conviction under that statute. On appeal, Cannaday contends that the trial court erred in failing to apply the "safety valve" provision of Code § 18.2-248(H)(5). Because we hold that the trial court properly considered the safety valve provision, we affirm the trial court's judgment.

BACKGROUND¹

I. The Underlying Offense

Cannaday's interactions with the Henry County Sheriff's Office began in February 2018. Three times that month, February 4, 8, and 20, an informant came to Cannaday's home and purchased drugs from Cannaday.² Based on information provided by the informant, the sheriff's office obtained a search warrant for Cannaday's home and executed the warrant on February 28, 2018.

In the second-floor master bedroom of the home, sheriff's deputies found $1,837 in cash, .55 gram of heroin, a Schedule I controlled substance, 10.76 grams of "a substance containing methamphetamine," a Schedule II controlled substance, a loaded Taurus PT-740 semi-automatic pistol, a Thompson Center 50 caliber muzzle-loader rifle, and a loaded semi-automatic Soc It Flli Galesi-Brescia 6.35 caliber pistol. The Taurus PT-740 was found under the mattress, while the muzzle-loader was hanging over a window. The Soc It Flli Galesi-Brescia was found in a nightstand.

In the kitchen, the deputies found $1,000 in cash, a spoon, scissors, a shoelace, a bag containing digital scales, and a ledger on the countertop. On the top shelf of a utility closet in the kitchen, the deputies found a plastic bag containing 114.88 grams of "a substance containing methamphetamine." Along with the firearms, drugs, and other items found in the home, deputies also seized $1,600 in cash from the "nail room," three cell phones, and a set of black body armor from the living room. Finally, the deputies seized several vehicles, including a 2009 Nissan Maxima. The deputies discovered a Ruger semi-automatic pistol in the console of the Nissan Maxima.

Following the execution of the search warrant, Cannaday spoke with the Henry County investigators, including Investigator Timothy Brummit. Cannaday admitted ownership of all the controlled substances found in his home. He cooperated with the sheriff's office, providing the investigators with information about his buyers and suppliers, and offering detail about an upcoming controlled substance purchase. He also asserted that all the firearms discovered in the search of his home belonged to his wife.

II. The Charges and Pleas

On January 4, 2021, the trial court convicted Cannaday of three counts of distribution of various substances in violation of Code § 18.2-248(C) and one count of distribution of an imitation substance in violation of Code § 18.2-248(G), all of which stemmed from the controlled purchases that occurred in February 2018.³ Then, on April 5, 2021, Cannaday pled no contest to, and was convicted of, one count of possession with intent to distribute more than 100 grams of methamphetamine in violation of Code § 18.2-248(H)(5), the amended charge of possession of a firearm while possessing a controlled substance in violation of Code § 18.2-308.4(A), and one count of possession of a firearm after previously being convicted of a felony within ten years, in violation of Code § 18.2-308.2(A). The April 2021 convictions stemmed from the search of Cannaday's home executed February 28, 2018.

III. The Sentencing Affidavit

In anticipation of sentencing, Cannaday filed an "Affidavit in Support of Request for Safety Valve Exemption Pursuant to § 18.2-248(H) [(5)]." The affidavit asserted that Cannaday purchased the Soc It Flli Galesi-Brescia 6.35 caliber pistol a few days before the search from a friend who was "trying to make some money." Cannaday claimed that he "had no idea" that his wife kept a firearm hidden underneath the mattress in their master bedroom, although he was aware of the Ruger she kept in her Nissan Maxima. The muzzle-loader, Cannaday affirmed, was a gift from his grandfather and inoperable. Cannaday admitted to lying to the investigators about the ownership of some of the firearms. He explained that he told investigators that the firearms found in the home belonged to his wife because "[he] knew [he] was a felon and couldn't own firearms." The affidavit also included a detailed description of Cannaday's business in narcotics distribution.

Cannaday also submitted an affidavit executed by his wife, Kasie Taylor Cannaday. In her affidavit, Kasie acknowledged that the Taurus PT-740 semi-automatic pistol discovered under the mattress belonged to her. Kasie explained that Cannaday "didn't know about it" because she purchased the pistol during a period of marital separation. When she and Cannaday reconciled, she did not tell him about the pistol because she "knew he couldn't be around guns" because of a prior felony conviction. Kasie acknowledged she also owned the Ruger found in her Nissan Maxima and asserted that she "always kept it with [her] in the car for protection."

IV. The Sentencing Hearing

The trial court then held a sentencing hearing. Before the hearing, Cannaday filed a "Motion and Memorandum of Law in Support of Safety Valve Relief From Mandatory Minimum Sentence." The motion addressed all five of the predicates enumerated in Code § 18.2-248(H)(5) and argued, essentially, that Cannaday met the requirements of the safety valve provision because the firearms seized at his residence were not used in connection with the drug distribution offense with which he was being charged.

Before taking evidence, the trial judge announced to both counsel that "the [c]ourt has reviewed ... the Defendant's Affidavit in Support of his request for the safety valve exemption and his motion and Memorandum of Law in support of that motion." The trial court then heard evidence from the Commonwealth and from Cannaday.

Cannaday called Kasie and Gary Wayne Wagoner, his father-in-law, as witnesses. Cannaday also testified on his own behalf. He testified that he had not been truthful in his statement to investigators that he was "this big guy" in the local drug community. Other than this admission about his candor with investigators, neither Cannaday nor his witnesses testified to the safety valve predicates addressed in his motion.

The Commonwealth called Investigator Brummit as her sole witness. Investigator Brummit testified that several months following the initial search, the sheriff's office learned that Cannaday had resumed selling controlled substances from his home. This information ultimately led to the execution of another search warrant on Cannaday's home on July 3, 2019. Although no drugs were found in the second search, sheriff's deputies seized two ATVs, three motorcycles, a scooter, a boat, a camper, four more vehicles, and $3,300 in cash.

At the conclusion of the evidence, the trial court heard argument from both the Commonwealth and Cannaday. The Commonwealth argued that Cannaday did not satisfy the safety valve provision because in his affidavit in support of his request "[Cannaday] said he had the firearm, he bought the firearm, [and] it was his firearm in the drawer of the bedroom where he was located." Cannaday's counsel, acknowledging that the trial court had "responded" to its motion for safety valve relief, argued that Cannaday had "taken the necessary steps to invoke the safety valve provision of [ Code § 18.2-248(H)(5) ] ... to show that [Cannaday] at no point during this transaction possessed a firearm, used a firearm, us[ed] threats of violence or any credible threats of violence, [which] is required for one of the factual predicates." Cannaday concluded by asking the trial court "to find that he has satisfied all of the factual predicates for safety valve relief and sentence him to an appropriate sentence."

After hearing the evidence and the arguments, the trial judge stated,

As far as mandatory minimums.... You know, the question is: does Mr. Cannaday comport with the safety valve provisions of the statute, and the main question is the gun, although I think to a certain extent, Mr. Cannaday was playing both ends against the middle.... I am afraid I have to come to the conclusion that the safety valve provisions do not apply to Mr. Cannaday in this particular instance.

The trial court then sentenced Cannaday to forty years in prison on the charge of possession of methamphetamine with intent to distribute and five years on the charge of possession of a firearm after being convicted of a felony. Of his forty-year sentence, twenty years were mandatory active time under Code § 18.2-248(H)(5), and two years were mandatory active time under Code § 18.2-308.2(A). The remainder of each sentence was suspended. The court also imposed five years’ imprisonment, all suspended, for each of the remaining charges.⁴ This appeal followed.

ANALYSIS

Cannaday contends that the trial court erred in imposing the mandatory minimum sentence under Code § 18.2-248(H)(5) because it did not first articulate its specific findings for each predicate included in the statute's safety valve provision. He argues that by stating that the safety valve provision "did not apply," the trial court disqualified Cannaday at the threshold without properly considering...