State v. Cardillo
| Decision Date | 26 March 2021 |
| Docket Number | 120,606 |
| Court | Kansas Court of Appeals |
| Parties | State of Kansas, Appellee, v. Joseph Matthew Cardillo, Appellant. |
NOT DESIGNATED FOR PUBLICATION
Appeal from Montgomery District Court; Jeffrey Gettler, judge.
Ryan Eddinger, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before Arnold-Burger, C.J., Bruns and Powell, JJ.
A jury convicted Joseph Matthew Cardillo of possession of methamphetamine with intent to distribute, criminal threat and aggravated failure to appear. As a result of these convictions, the district court sentenced Cardillo to 122 months' imprisonment. He now brings this direct appeal from his convictions and sentence. For the reasons below, we vacate Cardillo's sentence on his drug charge, we reverse the defendant's conviction for criminal threat, and we remand the case for resentencing and other proceedings as noted.
In early 2016, Montgomery County Sheriff's deputies were actively seeking to stop Cardillo and investigate his suspected involvement in narcotics trafficking. Around 8:30 p.m., Sheriff's Deputy Rickie Long stopped Cardillo's vehicle for an expired license plate tag. Only a few minutes after Long stopped the vehicle and before he contacted the occupants of the stopped vehicle, two other officers arrived at the traffic stop-Deputy Will Wilkinson and Sergeant Jeremy Hunsucker. Long approached the vehicle and found three occupants: Rai-Lynn Dyer, who was in the driver's seat Cardillo, who was in the front passenger's seat; and Amanda Sisco, who was in a back seat on the driver's side.
Deputy Long asked Dyer, the driver, for her license, but she could not provide him with it because she had neglected to carry it with her that night. When Long asked Dyer her name she replied her name was "Amanda Smith." But Long had personal knowledge of both Amanda Smith and Dyer from prior encounters and knew Dyer was lying about her identity. Because of this knowledge, Long asked Dyer to join him in the front seat of his patrol car, and, once inside, Long told Dyer that he planned to write her a warning for the expired tag and that he needed her name for the paperwork. At this point, Long told Dyer he knew she was not Amanda Smith, and Dyer told Long she had lied about her identity and gave her true name. Long arrested Dyer.
Hunsucker informed Dyer that he planned to have his K-9 sniff the vehicle for illegal drugs. Hunsucker removed Cardillo and Sisco from the vehicle. He placed Cardillo in the front of Wilkinson's patrol car and ordered Sisco to stand in front of Wilkinson's patrol car while he performed the K-9 search of Cardillo's vehicle.
First Hunsucker allowed his dog to do a "free-air sniff" around the vehicle, and that search did not produce any reaction from the K-9. Next, Hunsucker directed the dog to sniff regions of the car's exterior. When the K-9 sniffed along the bottom of the driver's side door it sat down, indicating the presence of one of the substances the dog was trained to detect. Upon searching the interior of the car, Hunsucker found a set of digital scales, which were covered in a clear residue he suspected to be methamphetamine, under the driver's seat. While Hunsucker was preforming the K-9 sniff and search of the interior of the vehicle, Sisco was moving around in front of Hunsucker's patrol vehicle, where he had ordered her to stand.
After Hunsucker discovered the scales in the vehicle, officers searched Cardillo and found $285 on him and then placed him in the back of Wilkinson's patrol car. The deputies also placed Sisco in the back of Wilkinson's patrol car, and, in the process, Hunsucker and Wilkinson discovered a bag of methamphetamine on the pavement next to where Hunsucker had instructed Sisco to stand while he searched Cardillo's vehicle. Hunsucker accused Cardillo of dropping the drugs there, but Cardillo denied doing so.
Unbeknownst to Cardillo and Sisco, their conversation inside the patrol car was being recorded by the officers. Sisco and Cardillo discussed the methamphetamine that was found outside the patrol car. During this recorded conversation, Sisco stated that Cardillo had thrown the drugs at her inside Cardillo's vehicle and demanded she take possession of the methamphetamine. Sisco stated that the drugs fell out of her pants and she tried to kick the baggie under the patrol vehicle. During the conversation in the patrol vehicle, Cardillo repeatedly told Sisco that she needed to tell the law enforcement officers that the methamphetamine was hers. At one point in the conversation, Cardillo explicitly threatened to kill her and at other points strongly insinuated the same: "Amanda, I will kill you"; "This is not going to end nice 'cause I'm going to be out eventually"; and "You know what I'm capable of."
When interviewed at the scene, Cardillo admitted to being a methamphetamine dealer. In this interview, he also claimed Sisco was dealing on his behalf. The officers arrested Cardillo and charged him with possession of methamphetamine with intent to distribute and criminal threat.
Following Cardillo's release on bond, he fled to New York City, New York. After law enforcement found his Facebook page, which contained posts that disclosed his location, law enforcement returned Cardillo to Kansas. Because of these actions, the State charged Cardillo with aggravated failure to appear.
Sisco testified at trial that when law enforcement stopped the vehicle, Cardillo tossed the drugs into her lap and told her to get rid of them. Sisco testified that she believed Cardillo would kill her "[b]ecause of his reputation, because of everything I was told." Her belief in this threat was bolstered even more by the fact she witnessed Cardillo beat up the father of her children about a month before this incident. Sisco testified, "I was scared for my children and for me that if I didn't tell them that it was mine, that he would have something done."
Ultimately, the jury found Cardillo guilty of one count each of possession of methamphetamine with intent to distribute, criminal threat, and aggravated failure to appear.
At sentencing, the district court found Cardillo's criminal history score to be a B. Cardillo objected to this classification, and the district court upheld his criminal history score as a B. The district court sentenced Cardillo to a controlling term of 122 months' imprisonment-122 months for possession of methamphetamine with intent to distribute, 6 months concurrent for criminal threat, and 6 months concurrent for aggravated failure to appear.
Cardillo now timely appeals his convictions and sentence.
On appeal, Cardillo raises three arguments. First, he argues that his prior criminal threat conviction was improperly used to calculate his criminal history score. Second, he argues his current criminal threat conviction must be reversed because the jury did not reveal if it was convicting him of intentional or reckless criminal threat. Third, he argues the district court erred in denying his motion for new counsel. We will address each argument in turn.
The State concedes that we must remand this case for sentencing to determine whether Cardillo's prior conviction for criminal threat should have been used to calculate his criminal history score.
Cardillo's PSI report assigned him a criminal history score of B based in part on a prior 2015 criminal threat conviction, a person felony. Had this conviction not been used to calculate his criminal history score, Cardillo's criminal history score would have been C instead of B. See K.S.A. 2020 Supp 21-6809. An assigned criminal history score of C would have reduced his controlling sentence by five months-assuming the district court would have also used the mitigated sentence for a criminal history score of C. See K.S.A. 2020 Supp. 21-6805.
A district court is prohibited from using a prior conviction "defined by a statute that has since been determined unconstitutional by an appellate court" to calculate a defendant's criminal history. K.S.A. 2020 Supp. 21-6810(d)(9). In State v. Boettger, 310 Kan. 800, 822-23, 450 P.3d 805 (2019), cert. denied 140 S.Ct. 1956 (2020), the Kansas Supreme Court held the "reckless disregard" portion of the criminal threat statute found in K.S.A. 2018 Supp. 21-5415(a)(1) to be unconstitutionally overbroad because it encompassed more than true threats and thus potentially punished constitutionally protected speech. But Cardillo's PSI report does not reflect a subsection for his prior criminal threat conviction. It does not reveal if the jury convicted of reckless or intentional criminal threat under (a)(1) or under a different subsection of the statute. Because it is unclear if Cardillo was previously convicted of a crime that is now considered unconstitutional, we agree with the parties that we must vacate his controlling sentence for the methamphetamine conviction and remand the case so the court can determine whether the prior criminal threat conviction was properly classified as a person felony in accordance with Boettger, 310 Kan. at 822, and State v. Obregon, 309 Kan. 1267, 1275, 444 P.3d 331 (2019). If the district court finds the criminal history score incorrect, it must resentence Cardillo. If the district court finds the criminal history score correct, we direct it to reimpose Cardillo's original controlling sentence.
Cardillo's criminal threat conviction must be reversed.
Second Cardillo argues that his criminal threat conviction is invalid and must be reversed. He argues his conviction must be reversed because the court instructed the jury on both intentional criminal...
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